*1 PENRY, Appellant, Johnny Paul Texas, Appellee. STATE
No. 71130. Appeals of Texas.
Court Criminal
Feb. 1995.
Rehearing Overruled June
721
725
OPINION PER CURIAM* July County1 jury a Walker found appellant, Johnny Penry, guilty Paul of the capital in the course of offense of murder committing aggravated sexual assault.2 See 19.03(a)(2). § Tex.Penal Code The an- special punishment swered the issues affir- matively, punish- and the trial court assessed ment at death. See Tex.Code Crim.Proe. art. 37.071(b).3 Appeal to this Court is automat- 37.071(h). appeal, appel- ic. See Article On error, points lant raises 135 but he does challenge sufficiency evidence support jury’s finding guilt.4 We will affirm. TRIAL
COMPETENCY Appellant maintains of error 121-123 that the trial court abused its discre change tion when it denied his motion for competency venue raised at the trial.5 alleged accompanying motion and affidavits get could not a fair trial in County pretrial publicity. due to He Walker argues change that the trial court’s failure to Sixth, rights venue violated his under the Eighth, and Fourteenth Amendments United States Constitution. hearing, appellant presented
At the venue appearing of various articles in four Chronicle, newspapers, Texas The Houston Huntsville, TX, Wright, John E. Robert S. Post, Morning The Houston The Dallas Smith, Grace, City, Glenda G. New York for News, major- Item. The Huntsville appellant. January ity appeared the articles James, Prosecutor, TX, Bryan, February appellant’s original Sp. when Jim W. Court, Price, TX, Atty., Supreme Coldspring, Dist. Rob- case6 was before the Joe Huttash, Austin, July Atty., again in ert State’s for State. June and when Su- * indicated, opinion originally prepared by Judge 3. otherwise all references to This Unless Campbell prior leaving Charles "Chuck” to his Code of Crimi- F. articles are to those in the Texas Court. nal Procedure. Appellant’s County 1. trial was held in Walker 4. The facts of the instant case be found in change County. of venue from Polk 114a, the discussion of infra. guilty was found of the same offense already changed 5. Venue had been from Polk trial, previous re- in a but that conviction was County County. to Walker Supreme versed the United States Court. See Penry Lynaugh, U.S. 109 S.Ct. (1989). 6.See footnote two. 106 L.Ed.2d
727 cannot obtain against him that he reversing prejudice his a preme opinion its Court issued However, merely impartial six trial.” original conviction. This was more than a fair and in publicized May competency 1990 a has been well prior to the case months because automatically in Only printed three were establish trial. articles media not the does venue; those February change and March of 1990. Two of of require a prejudice so as change of original jurors articles dealt the be that process require not due does County; the venue from Polk to Walker of the case. completely ignorant of the facts (Tex. tim’d was a letter to the editor. article State, v. 428 S.W.2d Narvaiz State, 789 Crim.App.1992); Ransom v. lawyer Ridley, Hal a criminal-defense Due (Tex.Crim.App.1989). S.W.2d County, for practicing in Walker testified only juror lay a aside process requires that appellant. public that was suggested He opinion and render a ver impression or famil- already familiar with the case and was presented in the evidence dict based on already appellant iar fact with the that had State, 771- court. Morris 488 S.W.2d a death which had been received sentence admit, however, Ridley that overturned. did many favor- newspaper articles were of seeking change of further that A a appellant.
able to He stated defendant many potential jurors grounds pretrial publicity must con- of because so were venue Department prejudice of Crimi- in the nected with Texas such show existence (T.D.C.J.),7 potential jurors community obtaining nal a Justice the likelihood that ap- Narvaiz, help being prejudiced against could at not fair trial doubtful. pellant. presented only The State its contro- not appellate An court will reverse 428. appellant’s verting deny change affidavit rebut asser- decision trial court’s Id.; tions. abuse discretion. venue absent an (Tex. Hathorn v. judicial The trial court took notice of the Crim.App.1992). competency voir veni- dire examination of the dire, During re. voir it was determined nothing in the Appellant has shown us twenty-one had some- veniremembers heard the trial record that demonstrates ease, thing having about the most read about change court’s denial of his motion to venue Only newspaper. it local venire- their two the realm of reasonableness. was outside they members stated that the information Narvaiz, 428. No mem- 840 S.W.2d at See opinions, their had obtained would bias for competency venire struck ber they the re- excused for cause.8 Of were opinion appellant’s an as to cause had formed questioned maining panelists about who were competency guilt. Points of error 121-123 or knowledge, ap- their three were aware are overruled. pellant inmate but did death-row offense; know of his three others details 124 and 125 aver that Points of error someone; one only knew that he had killed refusing trial court erred conduct venue; change had knew there been a refusing seques and in individual voir dire knew name and another jurors phase competency even ter the something “against had aware that he done panel number mem though large “a law;” thought may have seen and one publici exposed had to extensive bers been prison as inmate However, provid has ty.” because Huntsville. regarding argument authority these ed no 31.08(a) issues, points inadequately provides that a we consider Article nothing our presenting as change granted on a defen briefed and of venue be 74(f); county Tex.R.App.Proc. Robinson exists in the review. dant’s motion “there (Tex.Crim.App. 216 n. 4 great so prosecution where the is commenced Venirepersons opinion. Mason and Formerly Department aside” her the Texas of Corrections. 7. read case but were Bruner had also about the victim, Venireperson Carpenter knew excused for other reasons. venireperson “spiritually set could not Farris 1991). Next, Points of error 124 and 125 Taylor initially are over stated he be- ruled. psychiatrists trying lieved were to run a “con *13 game” by testifying in- that defendants are 126-131, points In appellant alleg- of error competent. He believed that the “business es that the trial court made numerous re- competency” way of was a for a defendant to during jury versible errors selection at the However, being prosecuted. Taylor avoid competency Specifically, trial. he contends put also he to stated that would be able overruling trial court erred in his chal- opinion competency him behind and render a lenges for cause because the veniremembers evidence, strictly including verdict on the prejudices had against biases or him. See evidence, psychiatric presented. 35.16(a)(9). Article prejudice There is a distinction between on part juror entertaining of a and the mere grant challenge The denial or of a State, opinion. Kemp of an v. 846 S.W.2d cause is within the discretion of the trial 289, (Tex.Crim.App.1992). Simply 299 be- court and will not be overturned absent an Taylor cause stated he felt some defendants State, Mooney abuse that discretion. v. might attempt feign incompetence to did not 693, 817 S.W.2d 701 mean he appel- had formed a conclusion as to We examine the record as a whole to deter competency. Taylor disquali- lant’s was support mine whether there is for the trial serving fied as matter of law from as a decisions, and, so, doing court’s give we juror in this case. We see no abuse of great deference trial court. Satter part discretion on the of the trial court. State, (Tex. 412, white v. 858 S.W.2d 415 Point of error 126 is overruled. Crim.App.1993). The trial court is able to consider such factors as demeanor and tone 127, point appellant of error as In through voice that do not come when juror prospective serts that Watkins should reviewing Mooney, a cold record. 817 juror disqualified have been as a because Appellant granted S.W.2d at 701. no appellant knew was a inmate death-row peremptory additional strikes. through Ap a bulletin he received at work. pellant argues in points through of error 128 appellant of error com that, coverage, 131 prospective due to media plains juror prospective Taylor was bi jurors Moore, Weinzierk, Massey, and Rit- appellant ased because he knew was a death- chey each knew that had killed psychologists try row inmate and felt were and, therefore, they someone should also be game” help appellant to run a “con disqualified. Massey appel also knew that consequences avoid the of his actions. lant on death row and that venue had changed County. been from Polk requirement There is no in our law that jurors completely ignorant jurors be All unequivocally the facts of these stated they opinions regarding ap- case. Cockrum v. had formed no (Tex.Crim.App.1988); Nethery pellant’s 589 competency. They all stated that (Tex.Cr.App.1985). they knowledge 694 could set aside their question juror put strictly sole is whether a can aside render a verdict based on the evi- prior stated, knowledge opinion previously and render an dence. As we have Cockrum, impartial prospective juror verdict. at mere fact that a S.W.2d has re- 589; Florida, Murphy see also ceived U.S. some information about the accused’s 799-800, 2035-36, through 95 S.Ct. case the news media does not auto- (1975). dire, During Taylor matically disqualify serving L.Ed.2d 589 voir him from aas Cockrum, juror. stated that he knew was an inmate at 589. Be- row, jurors on death but also that he knew no facts cause each of these assured the trial Moreover, Taylor put prior about the crime. assured court he or she could aside verdict, attorneys knowledge impartial the trial court and the that he had and render an opinion appellant’s compe- formed no as to the trial court did abuse its discretion. tency knowledge through Id. Points of error 127 and was not affected are death-row status. overruled. (Citations omitted.) 117-119, plainly appli- Medina is appel of error case, proof cable the instant complains that the burden lant hearing have been competency should provides ade- 46.02 hold that Article We argues that placed on the State. defendant’s protect a quate procedures trial, prove incompetency on placing the burden to competency at a right process to due Code, § of the Texas Penal him violated 2.05 appel- denying not err court did trial Eighth Amendment the U.S. Constitu the bur- place requested instructions to lant’s guarantees tion, of both process the due Points proof den the State. Constitutions. *14 the U.S. Texas are overruled. 117-119 trial, objected 120, the At to burden appellant com process. only erroneously proof of on the basis of due re court plains that the trial objection comport not his trial does requested Because instruction No. submit his fused to Eighth 5, jury with Penal and Amendment of the Code informed the the would have which preserved appeal, on he incompetence. issues raised has He finding ar a of effect of 52(a); Tex.R.App.Proc. our requested them for review. in gues the of the absence (Tex. 316, State, 325 finding competence Barnes v. 876 S.W.2d struction rendered State, v. 803 Crim.App.1994); unreliable, violating Johnson Fourteenth thus his 272, (Tex.Crim.App.1990). process 293 and his right S.W.2d due to Amendment Therefore, appellant’s argu- we address free Eighth right shall to be from Amendment process. only as to ment it relates due The trial punishment. unusual cruel and according to the re charged
court
presumed competent
is
defendant
Appellant cites
quirements in
46.02.
A
Article
competent to stand trial
and shall be found
authority
argument.
for
other
his
us to no
incompetent by
preponder
a
proved
unless
did
raise
constitutional
46.02,
See Article
ance of
evidence.
objections
regarding the
his
submission
1(b).
competency
§
proof
The
in a
burden
requested
his trial ob-
instruction. Because
v.
hearing is on the defendant. Barber
jection
comport
the issues
does not
with
359,
757
363
S.W.2d
preserved nothing
appeal, he has
raised on
Barnes,
325;
at
for our review.
437,
California,
In Medina
505 U.S.
Johnson,
293. Point of error
2572, 2579-80,
449-50, 112
120 L.Ed.2d
S.Ct.
120 is overruled.
(1992),
Supreme
stated:
Court
116, ap
points
error
provides
a State
a defendant access
Once
in
pellant
trial court erred
fail
contends the
competency
procedures
making
for
a
meaning
of the
jury on
to instruct the
perceive
... we
no basis
evaluation
ability
present
statutory phrase, “sufficient
holding
process
requires
that due
further
lawyer with a reasonable
with his
consult
assume the burden
vindicat-
State
Specifi
degree
understanding.”
of rational
right by
ing the defendant’s constitutional
court re
cally,
complains that
trial
he
persuading the trier of fact that
defen-
request
“ration
to define the terms
fused
trial.
competent
dant is
stand
al,” “reasonable,”
“understanding,”
n
n
n
n
n :
which,
claims,
vague and indefinite.
are
competency is
...
re-
The test
determine
Due
Clause does not
Process
pres-
has
defendant]
sufficient
adopt
procedure
[the
over
“whether
quire a State to
one
lawyer with
ability
may produce
ent
to consult with his
it
another on the basis that
degree
understand-
of rational
the accused.
reasonable
more favorable to
results
as well as
ing—and
he has a rational
precedents,
whether
our
it
Consistent
understanding
proceedings
the criminal
factual
enough that
State affords
402,
U.S.,
Dusky
U.S.
against him.”
plea
on
incom-
behalf
defendant whose
(1960).
788,
VOIR DIRE “in- used in the first tentional,” culpable mental state of In twenty-four points of error crime: 59), (points through complains appellant that the trial Prospective Waggoner: court erred at dire. The voir Juror appellant record reveals all exhausted Prosecutor, [By after a recitation peremptory challenges granted and was two hypotheticals explanations various request additional strikes. After his terms]: differences between two denied, peremptory appel more strikes was you follow the Would court’s instructions venirepersons lant identified several as ob question this on the answer based jectionable jurors who were seated simply you not evidence and because had Error, jury. if any, preserved. Demou him already guilty? you found do Could State, (Tex.Crim. chette that? However, App.1986). trial court because the mean, I A I could Yeah. do that. granted appellant peremptory two additional strikes, Q. you special we can not Would answer first [the reverse con on the issue] viction unless he based evidence? demonstrates that trial discharging court committed error in three A. Yes. State, jurors.13 Martinez v. 763 S.W.2d Q. just Okay. you And found because (Tex.Crim.App.1988); Rector guilty, you him going are not to come (Tex.Crim.App.1986). along yes and answer this one automatical- Appellant challenges twelve veniremembers. ly, you? are Because we hold the trial court did abuse A. No. regarding its discretion ten venire- of those persons given and because two n n n n n : n : strikes, peremptory extra can show [By Counsel]: Defense When we are talk- no harm. See Chambers v. one, special about issue number let’s Therefore, we mind, say, your do see that there pertain need address the *17 is—or there is a distinction inten- between prospective jurors Falknor and tional versus deliberate? (points 47, 52, through Anderson of error 45 59). 53 and so, I A. If don’t know what it is. Q. you you gone Let me ask this. If had Challenges Cause for and, course, you you back realize don’t points through In of error 36 get particular you questions to these until posits overruling the trial in court erred his already somebody guilty found in- have challenges venireper- for cause because the committing tentionally a ... If murder question against prejudices in held as- sons that, you already just had done be- and upon pects of the law was entitled which he you somebody cause had answered that 35.16(c)(2). rely. See Article The authori- murder, capital they a had committed a challenge ties and standard of review for intentionally just knowingly and killed ... are set out in cause identical to those you because have answered that had he 131, swpra. points through of error 126 this, crime, guilty he done and was of that you in does that mean and of itself that 37 and automatically special answer issue number appellant argues jurors prospective deliberately one that he did that? Blair, Waggoner, not dis Lawson could “deliberate,” tinguish between the terms as A. No. pre- questing particular did
13. The State contends that strikes for extra venire- any objec- prior taking serve error because he did not name peremptory members jurors. agreement, disagree. By We no tionable trial court re- strikes. The denied peremptory strikes were taken until after voir quest eventually and these veniremembers sat on complete. Appel- dire of the entire venire was jury. designated objectionable jurors re- lant So, now, to the same back So, Q. Okay. Q. Okay. is a distinction be- there You have an- question in on intentional. and intentional now tween deliberate innocence, you have found guilt or swered your mind? guilty. him Well, exactly I it A. don’t know what guilty, I’m is a fine line. I I would answer would be. sure there If him A. found number one. Q. just yourself, you can’t You don’t know it? verbalize Q. Automatically? mean, I I A. I told someone intentional- A. No. mean, I ly something, I could turn did Prospective Blair: Juror it, deliberately say I I around and did And, Alright. [By Counsel]: Defense thing by same it. would mean the then, have second you back and we come mind, Q. your though, you can think of trial, may or part of where evidence where there would be dis- situation [sic], but, you anyway, presented tinction? intentionally already found that have
A. No. particular murder. committed the n n n n n n Yes, A. sir. one, Well, says Q. intentional State Now, your Q. upon strong view- based somebody intentionally commits a mur- question you believe point, do der. answered, automatically is Number One some- just [sic] he intentional kills Right. A. because answering body, Number would that be Q. they right turned back around Then One, away? right word, deliberate, they use a different special sir, Yes, issue number one. pretty A. much. Right. A. I sure reason for am there And, your Q. no there is distinction terminology. their different intentional, mind between deliberate same, if
they in the the man are one course of com- committed a murder say you Q. still don’t see the distinc- You mitting some other crime? tion? Yes, A. sir. No, it explain A. unless some other n n n n n n way. answered, Question One is I Q. Number *18 information, any other I do not don’t need special Q. Okay. going Again back to the any, because intentional and deliber- want issue, intentional, you person if found a same, you can guys in the ate is one [sic] capital intentionally committing guilty of Legislature, talk about the sit here and murder, is, itself, sufficient that and day long, Question but talk it all and about think, if you, you to he to don’t have answered, is boom? Number One it, intentionally good enough did that is something Basically, is I unless there me, A. special I can answer issue number one of, sir, say yes, I just think would can’t yes? you to be right, have no reason that’s to it than that. A. There more there. expectation that Q. the reasonable With n n n n n would the the deceased another ¾: death result? Okay. respect to [By State]: the With A. You have to be able to— Yes. that, poor gave you probably exam- and I Well, Q. intentionally if some- he killed ple of the difference between deliberate body, you you think that could wouldn’t said, I ago, when and intentional awhile reasonably the expect the death of de- guy holding pistol, cocked the about the to result? ceased little movement and looks off and sees a com- pulls trigger. That could be and the A. Yes. pared guy facing him trigger, any with a way way you other but that gun him, with a getting money on and feel? he is thinking only he is that witness know, A. I don’t think You so. I don’t here, alive, I going ain’t to leave him he any problem. think I would have gets boom, money goes you and Q. you they Do feel like that would auto- know, looking him dead on. You see what matically yes? be answered Now, I am talking you may about. consid- you question. A. Not if read er both of those deliberate and both of Q. your No. belief? intentional, those my point, that’s No, A. I it don’t think would be automati-
try to you way convince one or the other. cally yes. answered My point is, though, is that there is a Prospective Juror Lawson: distinction, sometimes, time, or most of the [By Okay. If I maybe true, go up Counsel]: Defense both be would most of the there, tricky and —it things is kind of that intentional- talking we have been about ly intentional, deliberately your and is the same in likely deliberate, and be words, mind. you say- other what are question vice though, versa. What that it ing, you term, up, have all set does it and the use a different and it is worded Legislature goes different, back and talks about all you a little and ask to answer words, deliberately these that question evidence, but that on based thing, intentional are the same no the fact matter that has a State burden of about, you guys your what proof talked mind? questions on all of these three A. but, and if him deliberate and also evidence, answer yond a prove Yes, could guilty earlier, you that the answers was reasonable it, you sir. were convinced you do that? must the fact that doubt, but, intentional, be by the convinced again and in [sic] that it was you so be evidence, order to yes, by found be- it, time ting and that doesn’t you tion? Is there you A. Q. [*] that would Is Yes, different? Mr. there all about there sir. n it, you something day long some help n make are way show Lawyer, you just n that I could I you can splitting talking sense explain He the distinc- are sit- to me. at this hairs, [*] toit give versus asking you found the man [By One n Defense you you automatically, deliberate. feel is such would answer n Counsel]: doing question n That extreme because that That is [*] Question you about intentional extreme have told me you [*] why Number penalty already feeling I was [*] to me. A. Just used different, say, dant. the same n Well, It all way in different n different. goes definition, way two n back —the words are The same ways n but only thing the same they to the defen- n used, definition are used thing. based I can n feel very deeply about? n [*] n [*] ‡ n *19 again, A. Here I [By would have to hear the respect to State]: [W]ith the first facts, But, okay? there, feeling, you up I do have a it issue asks about where was the know, there, you you deliberately, shouldn’t be or you conduct done would an- shouldn’t be in home or in question your someone’s their swer that based whatever mean, you is, store I something. shouldn’t definition of but you deliberate would know, normal, do that. You that’s I question would answer that based on the evi- think. you opposed dence that was before as to just answering you already it because had
n n n n n n words, guilty? found the man other I Q. any upon guilty, going automatically Would there real decision find him I’m to be your having part, yes. first propo- after found some- answer this issue That is one body guilty, answering questions proposition be, to these sition. The other I would following capable the law and answer- guilty him on the evi- was
have found
based
impartially.
dence,
punishment
issues
get
ing
I
to this
and then
down
when
not
Therefore,
did
issue,
we hold the trial court
going
Fm
to
that issue
first
answer
by overruling appellant’s
its
evidence,
abuse
discretion
going
I
on the
too.
am
based
Id.;
Mooney,
challenges
see also
for cause.
just
to
I have found him
answer
because
at 701. Points
error
you
guilty.
way would
do that?
Which
and 39 are overruled.
just
A.
like
whole
I will treat
this
trial.
38, appellant con
error
Q.
just
You
answer it
on the evi-
would
juror
was biased
prospective
Blair
tends that
dence?
special
issue
against
pertaining
the law
A. True.
provocation.14 Appellant
concerning
three
you had
Q.
matter that
al-
It wouldn’t
following:
Blair the
asked
not, you
him
are
ready
guilty or
found
you
be-
Assuming that
are convinced
Q.
at
going to look
the evidence?
that the defen-
yond a reasonable doubt
A.
it
all over the trial.
Look at
as
dur-
deliberately murdered a woman
dant
Q.
you
question,
look
her
intentionally raping
And
would
at that
ing
the course
it,
then,
your
mind
beyond
I take
and whatever
you
convinced
a reasonable
are
meant,
you would
person,
that is what
deliberate
a violent
who will
doubt that
do, you
apply it to whatever the
no
society,
would
pose a threat to
there was
behalf,
evidence was?
mitigating
offered on his
evidence
rap-
was
that
the defendant
Yes,
assume
when
A.
sir.
woman,
provoked him in some
she
all,
can,
you
way,
anyway,
sort
is,
Q. Okay. But the bottom line
irre-
anybody ever
to convince
would
be able
gardless
you
of what definition
attach
[sic]
you
it
for the defen-
that was reasonable
deliberately,
you
to the word
would
answer
respond
provocation
de-
dant
evidence,
totally
question
first
on the
liberately taking her life?
evidence,
just
other
on the
and not
answer,
negative
Blair blurted out his
After
you do
reason? Could
that?
objected
question
the State
Yes,
A.
sir.
juror
sought
it
to bind the
improper because
n
n
n
n
n
n
The trial court
specific fact situation.
to a
you
[By
Counsel]: Because
have
Defense
objection.
sustained the
already
already
person had
in-
found that
deciding
a defendant
whether
Without
tentionally committed a crime does that
challenge
question
a
for cause on
base
you
mean that
can answer number one
oc
improper,
hold no error
sustained as
we
yes,
automatically
have al-
because
dire,
During
voir
the State’s
curred here.
intentionally
ready found that he
commit-
the law and base
stated he could follow
Blair
ted a crime?
special
third
issue on
his answer
No,
A.
sir.
fur
record reflects
adduced. The
permitted,
reviewing
State was
without
voir dire for
ther that the
After
entire
to Blair.
veniremember,
they
objection,
the indictment
apparent that
to read
each
it is
facts,
say there is
we cannot
equivocating
in their re- Given these
were confused
visualizing himself
wrong
Blair
anything
sponses.
It is not error for the trial court
beyond a
reasonable doubt
deny challenge for cause to veniremembers
as satisfied
killing
of the deceased
on whether
the defendant’s
give equivocating
who
answers
response
any provocation.
they
punishment
reasonable
could answer a
issue
*20
(Tex.
State, 779
818
negative.
White v.
S.W.2d
Sattiewhite v.
Cf.
state,
Blair
and was
Crim.App.1989).
In
did
the instant
given a
asked,
case,
how he would answer
juror
that he
prospective
stated
each
evidence,
response
provocation, if
by
the con-
unreasonable in
whether
"[I]f
14.
raised
37.071(b)(3).
by
any,
Article
killing
the deceased.”
the deceased was
duct of the defendant
different fact situation. The trial court did
completely
memory.”
[he] could
blot it from
not abuse its discretion. Point of error 38 is But later he stated that he would be able to
overruled.
followthe trial court’s instructions. The trial
court did not abuse its
discretion
overrul-
In
through
error 40
ing appellant’s challenge for cause. Point of
challenges prospective juror Duncan on three
error
is overruled.
separate grounds. Appellant argues that
Duncan could not consider mitigating
evi-
His third challenge
alleg
to Duncan
dence, that he was
disregard
unable to
ille-
juror
es that the
any
would consider
confes
gally
evidence,
obtained
and that he would
voluntary merely
sion
because
trial
court
any
find
confession admitted in evidence to
objection.
admitted it
into evidence over
voluntary.
be
Duncan stated
give
first that he would
some
weight to
ruling
the court’s
to admit a confes
In the first of the
challenges,
three
However,
sion.
he further stated that he
appellant states that Duncan was unable to
would
capacity
consider the mental
consider evidence of his mental condition.
person confessing,
person
whether the
un
disagree.
We
Duncan never stated that he
language being used,
derstood the
and the
would not consider
evidence of
person’s
history.
clearly
life
Duncan never
mental
merely
opin
condition. He
stated his
stated
disregard
that he could not
such a
ion
probably
that he
would not find the evi
According
confession.
deference to the trial
dence to be mitigating
ap
unless it showed
ruling
us,
court’s
upon
the record before
pellant
distinguish
could not
right
between
we hold the trial court did not abuse its
wrong.
This Court has stated before:
discretion in overruling appellant’s challenge.
Texas,
this mitigating evidence is ad-
White,
See
Do think that a he cannot think of you merely because at can con- cause situation all that factual State, of, Hogue See killing specific fact situation. would not have ceive where (Tex.Crim.App.1986). 711 S.W.2d killing have been been —where would conceive of a Mangham stated that he could by the towards the reasonable defendant special he would answer fact situation where deceased? negative. Harris v. three in the See issue A. No. (Tex.Crim.App.1989). Q. I anything And is there can —I can’t further on the issue. questioned Burt was not any- give you any hypothetical kind of 35.16(c)(2) juror provides a is that Article I, change your thing, could that would if “he has a bias or for cause challengeable point? regarding particular mind that to any applicable law prejudice against Maybe. A. to upon the defense is entitled the case which Mangham nor Burt showed Q. Okay out. this is rely.” Let’s find What Neither of, you process is court did not abuse asking prejudice. to do think in the such trial something overruling appellant’s occurring, is that chal of the murder its discretion will not rise to Points of error 43 and 48 lenges that the decedent did which for cause. self-defense, pro- could have the level are overruled. committing into the defendant
voked points appel error murder. that the trial court erred over lant claims Okay. A. appellant’s challenges prospective ruling Q. right? helps I if that All don’t know jurors Specifically, appel Baker and Burt. now, you any, anything that but is there could argues that veniremembers lant of, situation, you could think factual pun mitigation abuse not consider child it, stop you and think about where and, therefore, against were biased ishment ques- answering that could even consider rely. upon he was entitled law which anything simple no answer? tion but a dire, Burt During Baker and each voir Well, looking imagine way, at it that I A. they child would consider stated there is. However, mitigating be factor. abuse to Q. You situation can conceive of factual they say would follow the each did of some sort? Further, Baker later court’s instructions. Yes. A. of child abuse that his consideration stated your history” of Q. you right depend Do have on mind on the “whole one would abuse; Burt that she would con- stated now? picture.” “part it as the overall sider A. No. Prospective Burt: Juror Burt were not shown have Baker and against the The mere prejudice law. bias or Q. go Special Lets Issue Number they acknowledged they be- fact that unrea- Three. I like to focus on that word little or no such evidence deserves lieved gave Obviously, Price there. Mr. sonable a sustainable chal- weight does not create examples already that. You some under Article 35.16. John- lenge for cause capital mur- somebody have convicted 331; Allridge son, der, so, time you would know at that Ap- if it it was not self-defense because points 49th of error are pellant’s 44th and self-defense, have conviction never overruled. anything? for Right. A. appel of error 50 and Okay. Q. not murder. Self-defense overruling erred in the trial court lant claims killing you think of a where a Can situation juror challenge prospective cause truly reasonable? self-defense is dire of At the conclusion his voir Blake. Blake, No, appellant stated: I can’t. A.
738 juror challenge will preventing intelligent peremp-
We for use this cause. He the of his violated by discussing tory the order Court’s strikes. this case that after [sic] worked he was State, In v. 808 S.W.2d Nunfio so, instructed not to do and if he can’t 482, (Tex.Crim.App.1991), 484 we held: instructions, follow those he can’t be ex- The standard review in a case the where pected to charge. follow the court’s He improperly he re- defendant claims also indicated that would he have to take stricted on voir dire is whether the trial impact Further, the victim into account. propriety court abused its discretion. likely he indicated that he is less to believe question sought the defendant which Johnny peace than a officer. He has al- to ask is determinative of the issue. We ready up made his mind about that. That question proper have held is if it that a challenge is our juror. cause on for this juror’s seeks to discover views on brief, complains appellant that Blake applicable issue to the case. him, against biased Blake would not State, Woolridge See also 827 S.W.2d innocent, presume appellant to be and that However, (Tex.Crim.App.1992). the trial Blake would not State hold the to its burden authority impose court does have the rea- proof. challenge Because the basis sonable on the restrictions exercise of voir during voir dire differed from these com- dire examination. Guerra v. plaints appellant appeal, made on has waived Harris, complaints. error as to these proper question during denial of a is voir dire S.W.2d at 27. always reversible error and will not be sub- 81(b)(2) ject analysis to a harm under rule argues Appellant also under these Appellate Texas Rules of Procedure.
points that Blake did not follow the trial Nunfio, 485. court’s instructions and discussed the case people. argues with other He that this cre In point appellant com harm “people” ated because some of these plains prevented court him trial expressed opinions about case and made inquiring venireperson from whether Lawson against appellant. Blake biased We have distinguish could between terms “inten “[p]rior knowledge before stated of a questioning tional” and After “deliberate.” from community crime the news media and by both and the State on the terms grounds require is not discussion sufficient one, relating special issue number venireman be excused for cause. The following during appellant’s occurred re-ex question sole for determination is whether a amination of Lawson: juror put can prior knowledge aside Q. you already Because have found that impartial opinion and render an verdict.” person already intentionally had commit- (Tex. Kemp crime, you ted a does that mean that can (citations omitted). Crim.App.1992) After a automatically yes, answer number one be- dire, review the voir we hold that already cause have found that in- he supports implicit record court’s trial find tentionally committed a crime? ing capable discarding any that Blake was No, A. sir. preconceived conclusions he have had Q. sorry? I’m given by and would follow the as to him law No, A. sir. court. trial Id. at 299. The court did not So, mind, Q. Okay. your there now his discretion. of error 50 abuse Points a distinction between deliberate and inten- are overruled. tional? Objection, [By Your Hon- Prosecutor]: Questions Improper improper question. or. That is an Just because he said would answer that through of error 54 evidence, question based on doesn’t contends that the trial court erred refus- mean that is a distinction there at all. prospective jurors allow him to ask six dire, questions objection. voir proper during thereby The Court: Sustain *23 pertain- objection questions Although asked various the State’s was mentally towards question already to Duncan’s attitude improper, had been before, a persons. As stated trial replied retarded answered when Lawson asked and by re- automatically yes not abuse its discretion not court does that would answer Guerra, questioning. stricting duplicitous special if were found to issue one case, prohibit- any at 467. committing crime. guilty intentionally in to an issue question did not relate to ed the discretion of the trial court It is within therefore, Nunfio, was, improper. questions duplicitous or un case and refuse that are 484; Woolridge, 827 S.W.2d at Guerra, necessary. at 467. of error 55 is overruled. Point 904. Point trial not abuse its discretion. court did of error 54 is overruled. 56, appellant main point prevented him from the trial court tains that
Appellant argues er in venireperson McClure inquiring whether to ror 55 that he was not allowed determine any unduly by evidence of affected would be juror Duncan’s prospective attitude towards family. impact had on the victim’s the murder mentally retarded. trial court did following: Appellant asked McClure permit appellant to ask Duncan not whether mentally persons who are retarded should be Well, Q. you important feel it is do juries. Appellant had allowed to serve on consider, the sen- determining in whether previously allowed ask Duncan death, been any impact, or if tence be life should following questions: was, family? on the victim’s there Q. you Do think that Well, already. mental retardation A. I kind of that answered might on have effect the voluntariness thing, it gets it to the same When person’s peace given know, of a statement a family, think something my you in I officer? my already family if in have someone —I it, any time how I feel about answered n n n n n n death, any I think kind of brutal there is weigh Q. you fairly Can and consider impact family, great a on that that it has testimony person’s mental retarda- that family, family the immediate and outside tion, on of the mental retarda- the effect too, friends, I don’t know that would but those tion the communication skills of family, I my opinion looking make at this who are so afflicted? my opin- guess probably it could come into
n n n n n n little, said, I I could. ion a because like myself in put I this wouldn’t want Q. you person’s Do feel a mental that shoes, I I also family’s but think could by so affected mental retarda- state can be they going through. are relate to what or mental illness that he cannot actu- tion Well, suppose any Q. you that facts act, do ally gravity does appreciate the get or before might that somehow another you you it seem fair to would consider case, you capital murder in a trial of making your this evidence decision you family, can assure victim’s about the person determining or did whether you prevent us those facts would objective anything, has a conscious or de- impair you imposing from substantially law, required by as or even be sire opposed to a sen- a life as death sentence certainty of a awareness reasonable tence? death result? would Honor, Objection, Your PROSECUTOR: n n n n n : n juror. commit the trying to Q. think illness can be you Do a mental objection. THE Sustain COURT: debilitating physical
as as a ailment? trying I Q. to some that am It seem n n n n n n not, really. I am you, I am to commit but Let us assume trying to state this fair. opinion as to whether Q. youDo have an penalty considering in the are persons retarded should [sic] or not mental case, okay? phase capital murder permitted to vote? be testify mitigation And of circum- some of the evidence that has come came as to stances, just they greatly were related to family shows that the victim’s because impacted terribly grieved greatly the defendant?
harmed the facts. pin juror Trying to PROSECUTOR: particular what she do A. Uh huh. as to would *24 type of evidence. Q. Okay? you that Can assure us the objection. knowledge prevent THE COURT: Sustain the You of those facts would not question, restate Mr. you substantially impair you or can the Smith. in consid- ering a life sentence such a case? Honor, Your I DEFENSE COUNSEL: Objection permissible that that is a statement again, PROSECUTOR: he is believe juror. trying to under— bind just Objection part, THE Restate THE COURT: sustained. Ex- COURT: the last objection Wright. Mr. me. is sustained. cuse DEFENSE COUNSEL: The n Judge— THE COURT: Restate it. I understand the question question. is, timony about the defendant’s mental condi- tion, and that means like a next door Q. [*] Could [*****] consider laya witness’ tes- [*] [*] n [*] n [*] [*] neighbor or something like that? A. No. I would like inter- PROSECUTOR: to also ject, object being repetitious. to The wit- Q. Mother father? already
ness
question.
has
answered the
A. Yes.
agree
question
We
that the
had al
Appellant’s question
an at-
constituted
ready been asked and
Guer
answered. See
require
tempt
Mangham to commit herself
to
ra,
Furthermore,
swpra.
question
at is
pass upon
credibility
as
she would
to how
attempted
to
sue
to commit McClure what
prior
of character witnesses
to trial. See
particular
his view
under a
fact
would be
Guerra,
(police
To claim was, therefore, question See Adanandus ed Roberts on harmless. to be able (Tex.Crim.App. ability proffered instruction to follow 1993). proof, must at least be burden “it 60 is overruled. Point of error plausible jurors might actually have that the the trial of error 61 avers that Point Spence follow instruction.” to incorrect allowing the State court erred prospective jurors that “deliberate” ly tell a mis- Because instruction was “intentional.” necessarily from distinct (see points law of error 83- statement infra), hold the trial court did we objection to the State’s Appellant made no ap- its discretion. We also note that abuse Therefore, he during voir dire.18 definition *25 pellant following question to ask was able the our Tex. preserved nothing for review. has get and an answer: State, 52(a); R.App.Proc. Draughon v. [w]ell, Alright, you it fair feel like would be 336-37 S.W.2d any require the to remove doubt State 61 is overruled. Point error abuse about mental retardation or child error, point he appellant’s 62nd beyond a reasonable doubt? improper complains that the used an State is No error is Point of error 58 shown. example killing hypothetical of an intentional overruled. during the individual general voir dire and its Appel dire several veniremembers. voir OF MISSTATEMENTS LAW veniremember, only points to one Gui- lant TO PROSPECTIVE JURORS the apparently last one whom dry, the with DIRE DURING VOIR hypothetical. complained-of the State used object he Appellant that failed concedes point appellant ar of error during previous general dire and the the voir gues allowing the court in the trial erred Therefore, appellant individual voir dire. law prospec State to misstate the to various only preserved has error for our review complains jurors. Specifically, tive he Guidry. regard See Tex. to veniremember equated mitigating fac improperly the State 52(a); Johnson, R.App.Proc. appellant’s reduce tors with factors 291. for the blame crime. hypothetical posed following The State the Appellant’s complaint A is without merit. Guidry: to veniremember the review of voir dire examination reveals example, say that, although you “mitigating” get give I the State defined When terms, you got in the in the course of an limited counsel had a murder defense robbery, as opportunity armed and it occurs follows: to cross-examine each venire- goes meaning mitigat- He into a regarding got You’ve an individual. member it, Further, got he ing. each store to rob and has the trial court instructed convenience counter, juror gun. up to the cocks prior to his voir dire that He walks individual just gun, right anything attorneys not be and sticks it said could know, evidence, face, you give me says, and as also clerk’s considered and defined money, stick-up. About that charge.17 this is a “mitigating” term the court’s objection regarding charged: this did file an 18. The trial court change include, point error in a written motion may is mitigating circumstance but A to, filed until any aspect written motion was not of the defendant’s venue. This not limited juror complained-of circumstances of the days character and record or after the last fifteen you death believe could make a crime which questioned. We further note that you inappropriate. If find that there sentence completely In each is unfounded. case, any mitigating are circumstances in this incident, merely complained-of stated the State weight they de- how much must decide “deliberate” "intentional” and that sometimes serve, therefore, give any, effect same, may under the law to be the but that seem assessing defen- them in consideration to there a distinction. personal culpability you an- at the time dant’s special issue. swer time, say let’s that he heard a noise impression out the indirectly intentional act door, front thought that he have was a causing during the death aof victim a rob- whatever, driving up customer bery and he capital will raise the crime to murder. door, looked out the holding gun 375; front Id. at see also Lane v. time,
cocked on
(robber
the clerk at the same
(Tex.Crim.App.1987)
619-29
in-
looking
door,
he is
out the front
and he
tentionally fires
ceiling
shot into the
and it
sees a
ricochets,
movement out of
someone);
the corner of his
killing
Gardner v.
eye.
He never even turns his head back
(Tex.Crim.App.1987)
686-87
around, just pulls
boom,
(robber
trigger,
in-
intentionally
leg,
shoots man in the
stinctively.
maybe
dies).
just
The clerk
and man later
reaching
money,
for the
like he had told
Morrow,
hypothetical
Unlike the
to,
him
happened
quick,
but all of this
real
hypothetical posed
proper example
here is a
door,
movement,
looks out the front
sees a
murder,
of both
Texas Penal Code
pulls
trigger. Okay?
He intended to
19.02(a)(1),
murder,
§
capital
Texas Pe-
gun,
fire the
might
so a
find him
19.03(a)(2).
§
nal Code
It can be inferred
guilty
capital
murder
because
inten-
who, during
that an accused
the course of a
tionally shot the clerk. He intended to do robbery, intentionally
shoots his victim the
*26
fired,
that because at the moment he
face,
objective
had the conscious
or desire
had the
gun,
conscious desire to fire that
it
that death should result. See Tex.Penal
was not an accident. You see what I’m
6.03(a) (definition
“intentional”).
§
Code
of
talking
require hardly
about? But it didn’t
indirectly
The death did not
occur. We find
all,
any thought at
almost a reflex re-
in
hypothetical.
no error
the State’s
Point of
sponse.
error 62 is overruled.
Appellant objected
improper
that this was an
com
hypothetical, but the trial court overruled the
plains
erroneously
that the State
stated that
objection.
Appellant cites Morrow v.
prospective juror
a
could decide not to con
(Tex.Crim.App.1988),
Johnson, granted motion the State’s at Point of error admis- argues that the testing. He further is overruled.21 testing from the obtained sion of information point of error Appellant’s 64th Fourth Amend- rights his under violated pro trial court used a flawed avers that the I, and Article Constitution ment to the U.S. during voir dire posed mitigation instruction Appel- the Texas Constitution. section 9 of and, punishment, there that was not used at trial, lant, phases raises both fore, conduct his was unable to through evidence mental issue of his status properly. selection retardation, organic brain regarding mental given The instruction the trial sample I.Q. in counter- The State damage, and judge prospective jurors stated the argues that this assertion following: appellant’s claimed necessary to combat determine, you giving If effect when requested dysfunction a search brain evidence, mitigating any, a sen- if life following infor- gain warrant in order tence, by negative finding to as reflected mation: consideration, rather the issue under than (1) diagnosis determination and sentence, appropriate a death re- all at this mental condition defendant’s personal culpability sponse to the (2) To proceedings; to these times relevant defendant, finding negative should be extent determine the existence and/or special given to that issue under consider- upon dysfunction and its effects brain ation. status, intent; mental defendant’s given punishment stated: instruction (3) neu- defendant’s true To determine the determine, giving upon If effect bear rological when condition as it evidence, voluntariness, any, ability compre- mitigating life sen- issues of *27 issues, tence, by voluntarily re- negative finding ability to to legal as reflected a hend consideration, requirements of the under rather than to issue form conduct sentence, appropriate law, required a death is an re- to commit the intent a sponse personal culpability charged may have of and as same offense defendant, any mitigating aggrava- or negative finding bearing upon a should be of given special ting to one of issues. as as likelihood evidence well of to future acts the defendant commit significant There was no difference between continuing threat constitute a violence and we have held the two instructions. Because society. given punishment that the instruction eleven, (points through proper of error one grounds sets for issu- Article 18.02 out infra), sample we hold the instruction used argues Appellant ance a search warrant. of during proper. voir dire was also of only ground issuance that the feasible in Article case can be found the instant that the differ- appellant’s As contention 18.02(10): items, person- “property except or during him somehow harmed instructions constituting ... writings al the accused selection, objection no ever made. constituting evi- of an offense or evidence Therefore, appellant has waived error. particular per- tending to that a dence show Johnson, 52(a); 803 Tex.R.App.Proc. See He asserts that an offense.” son committed Point 64 is over- at 291. S.W.2d testing fit neurological within does ruled.
article. SEARCH testing a tool used to deter- Neurological is equated error, status is person’s he mine a mental point of In 71st psychological testing psychiatric a or incorrectly with complains court trial factor; State, youth mitigating a juror a to consider as cites v. Trevino 592, mitigating (Tex.Crim.App.1991), proposi youth juror may for the to be either 614 consider State, mitigating youth that must be tion that is a factor aggravating. or 701, Robertson v. 1993). This has as a matter of law. Court considered (Tex.Crim.App. n. 13 712 require a subsequently does not held the law 744 Further,
nature. applied mental status is relevant to whether the trial court the law to the person’s competency to stand trial and his properly. facts Id. personal Therefore, culpability. the trial provides Article 38.21 that a statement of properly court ordered the tests under Es- against an accused be used Smith, 454, 465, telle v. 451 U.S. 101 S.Ct. appears freely him if it it was . 1866, 1874, (1981).22 68 Appel- L.Ed.2d 359 voluntarily compulsion per- made without rights lant’s under the Fourth Amendment suasion. The determination of whether I, and Article section 9 were not violated. voluntary confession is on an exami- based Because the properly trial court ordered totality nation of circumstances sur- Smith, the tests under Estelle v. we need not State, rounding acquisition. its 765 Griffin consider applicable.23 whether article 18.02is 422, 429 S.W.2d Point of error 71 is overruled. deficiency factor, is a but not Mental
CONFESSIONS
determinative,
ascertaining
alone
the vol-
untariness of a confession and the waiver of
70,
through
of error 66
against
the Fifth
privilege
Amendment
self-
appellant argues that the trial court
erred
State,
incrimination. Smith v.
779
finding
S.W.2d
voluntary
pre
his confessions
at the
(Tex.Crim.App.1989);
429 n. 8
see also
suppression hearing
trial
admitting
and then
State,
(Tex.
Casias v.
during
them
S.W.2d
phases
both
of the trial. He
Crim.App.1970).
analogous
given
maintains that
cases men
impairment,
his mental
defendants,
tally-slow
warnings given
he did not
or retarded
this Court
understand the
voluntary.
him
knowing,
and that he did not
has found confessions to be
make
See
Casias,
(confession
voluntary,
intelligent
there he raised an no such under these he claims issue was fact as to the confessions were vol circumstances.27 whether asserts, Therefore, untary. the he trial court appellant The record shows was advised required jury on the issue to instruct them, statutory rights, his he understood and 38.22, 7; §§ of voluntariness. See Article 6 & voluntarily making waived them before his State, (Tex. 726, Rogers v. 729 549 S.W.2d The confessions statements. were written as Crim.App.1977). An on instruction the vol- appellant story, they related his were appellant’s giv untariness of confession was signed Appel- read him before them. charge guilt/innocence.28 in the jury en at lant’s of mental illit- evidence retardation and not, 90, 92, 93, eracy standing alone, 101 his Points of and 102 does render error Casias, See pertain inadmissable. 452 each to the trial court’s failure to confessions White, 858; 488; punishment phase jury 591 at instruct at the S.W.2d S.W.2d Grayson, appellant’s at 555. of the confession. 438 S.W.2d The bulk voluntariness case, this appellant prior evidence that the basic Court held shows had that, reasoning necessary although does skills understand the a defendant have statutory warnings. right hold that the trial did to have the issue of voluntari- We court overruling appellant’s jury, he is not by err motion to ness submitted to the entitled resubmitted suppress admitting penalty phase to have it at the confessions into already through of error 66 such been evidence. Points 70 are when issues have submit- State, Penry guilt/innocence. ted at 691 overruled. (Tex.Crim.App.1985), rev’d 652 through grounds, Penry Lynaugh, supra. on other appellant complains that im trial court of the law properly regarding instructed the Under the doctrine of the case, questions Because where as to voluntariness confessions. determinations prior already appeal law have made on offered evidence he was men been accused has been cites Farr v. show that the warned confession, (Tex.Crim.App.1975), prior making and Sherman v. such statement or (Tex.Crim.App.1976), person to whom the same is made that: However, support argument. warnings] of his neither case [Statutory Sherman, applicable. case, evidence, is In both Farr and you So in if find from the this thereof, confessions were found inadmissible because the you or if have a reasonable doubt presented he was defendant had evidence that gave prior to the time the defendant the al- confessing by interrogating offi coerced into leged to Chief statement or confession of Police evidence of over cers. There is no official Smith, it, give the said Bill if he did Chief of reaching We in this case. further note that offi Police did not warn the defendant Bill Smith cial is relevant to a Fourteenth Amend coercion outlined, any just respects in the or as to one of analysis. process ment due We are unsure outlined, just requirements then will such making separate Four whether wholly alleged disregard the statement con- However, argument. teenth Amendment if he any purpose fession not consider it for nor were, rejected. be it would have to Coercive If, obtained as a result thereof. evidence police activity necessary predicate ais however, you beyond a find reasonable doubt voluntary finding is not within that a confession warning given aforementioned meaning of the Due Process Clause of the having prior made such defendant to his state- Connelly, Amendment. Colorado v. Fourteenth ment, it, still, you may before he did make 157, 167, 515, 521, 107 S.Ct. U.S. as evidence consider such statement in this Further, (1986). a defendant's L.Ed.2d case, you beyond must find from the condition, by apart itself and its mental from prior during to and reasonable doubt *30 coercion, require will to official never relation statement, any, knowing- such the defendant 164, of involuntariness. Id. at 107 conclusion voluntarily ly, intelligently and waived the S.Ct. at 520. rights warning, in the said hereinabove set out find, you or if have a and unless so reason- instruction stated: The thereof, you able will not consider the doubt any purpose confession for what- statement or are instructed that under our law a You any soever evidence obtained as result of or a defendant ... admissi- confession of shall be same. appears if it that the same was ble in evidence made, paragraph applicable to An identical the con- voluntarily compul- freely and without however, Ranger Maurice provided, fession made to Texas Cook persuasion, that it sion or accused, signed writing followed. and the be made in
747
resort,
understanding
repercus-
of the
intelligent
to a court of last
those determinations
generally
govern
waiving
rights.
held
the case
his
While a defen-
(cid:127)will
be
to
sions of
throughout
stages.
subsequent
all of its
Ex
his
dant must be instructed that
statements
(Tex.
513,
parte Granger,
court,
850
516
against
S.W.2d
in
can
him
the Su-
be used
Crim.App.1993).
having
pre
This issue
been
that he
preme
has stated
need
Court
viously
appellant,
adversely
decided
to
his
possible consequences of the
realize all the
points of
are overruled.
error
knowing
it to be
to be
and
waiver for
found
Spring,
intelligent. Colorado v.
479 U.S.
89,
point
appellant
In
error
851, 857-58,
564, 574-75,
93
107 S.Ct.
failing
in
complains
the trial court erred
that
(1987);
Burbine,
475
Moran
L.Ed.2d
meaning
jury
to
of the
instruct the
the
1135, 1141-42,
422-23,
U.S.
106 S.Ct.
objected
“intelligently.”
word
He
to the
(1986).
jury was
to
entitled
L.Ed.2d
charge
to
court’s
because it failed
define
ordinary
its
and
give the term
common
apprecia
“intelligently”
require
as to
“an
so
meaning. Point of error 89
overruled.
significance
relinquishment
tion of the
of the
[statutory] rights
of those
in a
and
mature
error
meaningful way.”
argues
jury
He
that the
failing to
argues that the trial court erred in
charge
require any
did not
substantial men
jury
statutory warnings
the
that the
instruct
rights,
capacity
tal
for a waiver
and
“effectively
must have been
communicated”
by allowing
jury
thus
him
the
harmed
to
appellant.
complains
He
trial
to
also
the
determine
he had
a valid
made
waiver
as
failure to define the word ‘warn’
court’s
necessary
when he
have
did not
intelli
charge.
“Objection
Appellant’s
used in the
gence.
8”No.
stated:
Supreme
Court has said
waivers
objects
charge
The Defendant
to the
only
voluntary,
must not
be
but must also
concerning
giving warnings
in
Court
knowing
intelligent
constitute a
relin
interrogation
connection
the custodial
quishment
right
privilege,
of a known
in
of an accused
that it fails
instruct
taking
background, experi
into account the
jury
ence,
taking
that the officer
statement
conduct of the accused. Edwards
effectively
Arizona,
482, 101
communicate each of
must
U.S.
S.Ct.
(1981).
Texas,
warnings to the
in order
obtain
meaning, jurors
supposed
are
to know such
Johnson,
52(a); Barnes,
325;
S.W.2d
terms,
meaning
common
and under such
at 293.
circumstances such common words are
respect
argu-
With
other
necessarily
charge
defined
to be
in the
ment,
Russell,
he contends that the officers should
jury.”
consider statements for it statement. pose they given improper unless found he had been the would have been an comment on proper warnings, “knowingly, and had intelli- the evidence for the court to include the issue gently, voluntarily” statutory charge. Appel- waived his of mental retardation ' rights. argument concerning This instruction was a correct state- lant’s his mental retar- (and was) admissibility appel- argued ment of the on to law the dation should have been State, jury during closing arguments. Appel- lant’s confession. Bell v. 582 S.W.2d the 800, (Tex.Crim.App.1979). point 812 trial lant’s overruled.30 error is overruling appellant’s court not did err 95, point appellant In ar of error objection already fully because the court had refusing gues that the trial court erred in to applicable jury instructed the on the law. jury instruct the not to consider his confes Id. Point of error 91 is overruled. they appellant sions believed was induced by promise by to confess made Ted Ever 94, appellant ar ett, investigator an for the District Attor gues refusing the trial court erred to appellant ney’s promised office. Everett jury instruct that his confession should anything “put on [him] [he] would believed, they not be considered if or had a that, Appellant argues given did do.” doubt, reasonable so men status, promise by mental this Everett could tally incapable of deficient as to be under “say have misled him to believe he could standing the nature and effect of his confes nearly anything” interrogating to the officers Appellant requested sion. claims the in things him and Everett would “correct jury struction asked the to take his mental later.” in regard retardation into account confession, voluntariness of his and that the promise by person If a made a obligation trial court had an to instruct the confession, authority then that con induced
jury legal on this relevant issue. State, fession is inadmissible. Alvarez v. 649 jury charge Article 36.14 states that a (Tex.Crim.App.1982). 620 S.W.2d Gen applicable should set forth the law of the case erally, the of the determination voluntariness weight expressing opinion without an on the depends totality of of the confession on the evidence, summing up testimony, of the surrounding the circumstances the confes discussing using jury argu- or However, the facts promise sion. Id. before a will sympathy inadmissible, ment to arouse the or excite the promise render a confession passions jury. of the When the trial court must be shown to have induced the confes properly jury instructs the on the issue positive for the defen sion because it was voluntariness, special singling dant, instruction by in au made or sanctioned someone out the issue of mental retardation would be thority, and of such an influential nature that weight improper an comment on the untruthfully in appellant might speak re Bell, State, at 812. evidence. sponse. Muniz v. 254 S.W.2d review, (Tex.Crim.App.1993). our we look Here, properly the trial court submitted promise the circumstances of the whether jury, requiring the voluntariness issue to the reasonably induce a defendant to ad would confession, considering that before mit to a he did not commit. Sossamon crime beyond had to find doubt reasonable State, (Tex.Crim.App. proper warnings given prior that all the were 1991). statement, that the statement made, freely voluntarily the conversation with and that Everett described appellant knowingly, intelligently, and volun- as follows: requested argues refusal of a defendant's instruction also that he was entitled requested instruction is not error where the instruction because a defendant is entitled this merely every submission of a defensive defensive the affirmative an affirmative submission the existence of an essential ory See Hill v. issue which denies raised the evidence. element of Ae State's case. Green v. Howev S.W.2d 1978). er, (Tex.Crim.App. inapplicable the instant case. The Hill is *32 24, supra. first con- go I asked him if he with us footnote The condition would back will, downtown, yes, of 38.22 replied, giving to he I the the Article statuto- which cerned met, you promise thing, ry if I If the warnings. will me one and that condition was said, well, that, Johnny, jury you he instructed that “before what and you promise you in this said will me that such statement as evidence won’t consider case, try anything I hang beyond to me that didn’t find on must from the evidence do, said, well, Johnny, you during I prior and me doubt to and know reasonable that that, that, statement, going I am to do if any, better than not such the defendant know- okay, voluntarily I ingly, intelligently and he said will do it. the and waived rights_” Here, merely promised charge Everett not to a crime not commit. he did complains that Appellant further that, to There is no reason believe in re- of “appears” paragraph the term in the first sponse promise, mentally to re- this even charge ambiguous. makes the instruction person expected tarded have Everett would The ‘You are instructed instruction states: protect prosecution him from for a crime law of that under our a confession a defen Furthermore, freely the prom- he admitted. if it dant ... shall be admissible response ise was made in to Everett’s re- appears freely that the same was and volun quest appellant accompany him down- tarily language complies ...” made This expressed No town. connection was or im- Appellant with Article 38.21. views plied questioning by to the later Chief Smith charge this piecemeal, whereas Court views Ranger potential or Cook other con- charge ambigu it as a whole. was not by appellant. fession It does not follow that clearly ous between the Mi delineates promise reasonably this could have induced requirements. randa and voluntariness See appellant to confess to crime he did not Bell, State, 812; S.W.2d at Burdine v. commit. (Tex.Crim.App.1986). totality not circumstances does Points error 96 and 97 are of overruled.31 any way promise
indicate that this
eroded
appellant’s
the voluntariness of
statements.
points
error 99
Therefore, appellant was not entitled to his
appellant argues the trial court erred in fail
requested instruction.
See Hernandez
jury
instruct
not
consider
State,
(Tex.Crim.App.
falsity
truth
confessions
1991). Point of error 95 is overruled.
deciding
they
voluntary and
whether
were
Appellant
argues
further
admissible.
appel
error 96 and
jury,
argument
in its
to the
em
argues
lant
should
trial court
have
phasized
reliability
confessions
jury
independent
instructed the
that an
vol-
ap
implication that it counteracted
with the
sep
untariness determination
be
must made
pellant’s evidence that his confessions were
warnings
arate from the
determination
voluntary. Appellant
not
that his
contends
given
rights
were
and Miranda
were waived.
particu
mental retardation makes this error
says
jury charge
clearly
He
did not
ex
larly
egregious because the
was discour
plain that the confession
be
must
found vol
fully
impact
ap
aged
evaluating the
from
untary
warnings
whether or not Miranda
pellant’s
impairment
mental
voluntari
given.
disagree.
were
We
ness of his confession.
given
jury for
The instructions
each
clearly
objection
confession
set
two conditions
made no
on these
forth
trial;
jury may
grounds
argument
met
to the State’s
which must be
before
therefore,
preserve
consider
evidence.
he did not
the issue
those confessions as
See
knowing
intelligent
Appellant argues
goes
nature of the
further that
confessions
waiver,
understand,
involuntary
were
because he did not
Miranda
to its voluntariness. Corwin
informed,
capi-
and was not
that a conviction for
Therefore, appellant's
tal
result
a death
failure to understand that
murder could
sentence.
However,
accused of the full
receive the death sentence does
failure
inform an
could
involuntary.
possible exposure under
extent of his
the law
render his confessions
*33
alleged jury argument
generally
govern
through-
error. Tex.
be held to
the case
52(a).
R.App.Proc.
subsequent stages.
parte
out all of its
Ex
Granger,
statement is a factor to consider
determin
to make
existence
*34
statements,
consequence
that
the determina
ing
admissibility
the
of such
the
fact
is of
to
probable
is
of
more
or less
critical factor
the declarant was
tion
the action
whether
emotions, excitement,
probable
be
the evi
by
still dominated
the
than it would
without
fear,
pain
or
of
The
into evi
the event. McFarland v. dence.” Rule 401.
admission
State,
824,
(Tex.Crim.App.
is
photographs
845 S.W.2d
846
dence of
within the discretion
1992).
of the
and will not be disturbed
trial court
of that discretion. Moreno
absent
abuse
startling
of
a
A review the record shows
State,
453,
(Tex.Crim.App.
463
v.
858 S.W.2d
in
instant case.
event occurred
the
The de-
1993).
shows that the trial court
Our review
emergency
to the
room
ceased was delivered
justified
finding the
relevant
in
was
approximately thirty
forty-five
minutes af-
the case.
material issues
being
sucking
ter
stabbed.
had a
chest
She
wound,
collapsed
ruptured kidney,
lung,
a
a
identity
The
the victim
the manner
side,
to her
and was bleed-
bruises
face
certainly
are
facts that
and means of death
permitted any
ing profusely.
was not
She
to the
consequence
are
determination
pain medication and she died within one and
State,
259,
Long
the action.
v.
S.W.2d
823
apparent
half hours of
It is
a
her arrival.
(Tex.Crim.App.1991).
ex-
271 n.
State’s
18
the
us that
deceased was still under the
65,
deceased,
portrait
hibit
of the
physical and
stress of the
emotional
assault
during
testimony
Bruce
the
introduced
she made
statements about
when
the
which Carpenter,
por-
her former husband.
complains.
Finally,
Id.
both
identity
prove
up
trait was relevant to
the
the
statements made related to
circum-
55A,
54A,
52,
the deceased. State’s exhibits
startling
of the
stances
occurrence. 7d35
body
depict
56A
at the
deceased’s
autopsy.
show the
These were relevant to
Appellant’s
contention
his Sixth
injuries
means of death and various other
right
Amendment
to confrontation was violat
photograph
exhibit 5
sustained.
is a
State’s
also
confrontation
ed must
fail. The
clause
dog.
photo is
of the
small
deceased’s
hearsay
requires
showing
that a
declarant
appellant’s
it
relevant
corroborated
because
the statement
is unavailable and that
bears
he
the de-
confession
stated that
wherein
adequate
reliability.”
“indicia of
Ohio v.
dog
ceased
her
him and
ordered
bite
Roberts,
2539,
56, 66, 100
2531,
448 U.S.
S.Ct.
Moreno,
at
away.
kicked it
See
(1980). Reliability may
L.Ed.2d 597
be
65
465;
at
Long, 823 S.W.2d
273.
where the evidence falls
inferred
within
firmly
hearsay exception.
rooted
Id.
determining
the trial
whether
When
State,
Penry
held in
As we
deceased
admitting
photo
the relevant
court erred
obviously
unavailable and
“excited
evidence,
limited to
graphs
our review is
into
hearsay
exception
is
utterance”
rule
probative
value of
determining whether
firmly
“old and
rooted.”
value. we jury charge. “elements of the in the offense” admitting court did err exhibits. 1.07(13). trial, § At See TexJPenai Code however, complains in also that the asked the trial court to complained-of pre- define “elements of the offense” as “both the troduction exhibits Court, Tennessee, used, "acquit” jury Supreme Payne 38. The first time is 37. The 2597, 2609, 808, 827, charge 501 U.S. 111 S.Ct. states: (1991), Eighth held that the Amend- L.Ed.2d you beyond If do not so find a reasonable impact testimony. not forbid victim ment does doubt, or if have a reasonable doubt there- Payne part precluding evi- limits Booth to that of, you acquit defendant of the offense will family members' character- dence of victim’s murder, crime, capital and consider whether he is opinions izations and about the the defen- guilty appropriate sentence. of the lesser offense of murder. dant and state, the burden ‘intentionally’ ability have shifted required mental intent. prohibited appellant’s trial proof acts.” Because to the defense the issue objection argu- charge comport complains does not with his Appellant also appeal, Tex. they ment on error is waived. jury emphasize failed to 52(a); Barnes, R.App.Proc. evidence, any ab- especially take all should Johnson, 325; S.W.2d at conditions, into physical or mental normal deciding of intent. the issue when account Further, we trial court note that the applicable law. did instruct as to the fol- jury as court instructed the The trial substantially the charge a refused When kill and the of intent to on the issue lows charge adequately or is covered same proof: burden give given, there is no harm in the failure to murder when person capital commits A charge. the refused Hawkins the death intentionally causes person such 81-82 in the person is of another while such charge jury, out each its the court set committing attempting to course *36 including required element of the offense the rape.... aggravated the offense of commit culpable mental instruction also state. The “intentionally” the definition contained of in- person “intentionally,” or with A acts jury that the to find “be- stated would have tent, respect nature of his yond in- a reasonable doubt” that respect of his or to a result conduct with tentionally committed crime. We con- the objective when it is Ms conscious conduct charge given adequately clude the covered engage in or cause or desire to the conduct charge refused. error 104 the Points of the result.... through 106 are overruled. beyond you find from the evidence Unless points through of error 107 defendant, on a reasonable doubt that the appellant contends that the trial court erred occasion, kill specifically to intended said refusing jury in to consider instruct the to Carpenter Pamela when he the said making appellant’s mental in its condition her, her, you cannot if he did stab stabbed specific determination of whether he had the mur- capital him of the of convict offense statutory argues intent to kill.39 He that the der. jury given of the definition “intentional” to proof of in all criminal cases The burden presupposes that the to con accused is able trial, upon throughout the the rests State nect his acts with them Tex.Pe results. See and never shifts the defendant. 6.03(a). asserts, Therefore, § nal Code presumed innocent jury give persons afforded All are to be opportunity the no of an poor reasoning person no be convicted effect to the of his requested Appellant’s requested Appellant’s four number instruction number instruction jury: the three admonished read: person is You are instructed that when you If find from that at the time the evidence requires charged that he with an offense which committed, alleged the defen- offense was intentionally you ... all of the act must take capaci- substantially dant had reduced mental consideration, and determine evidence into illness, ty, retardation, caused mental whether mental therefrom, if, at the the offense was time when defect, or other or other mental committed, allegedly person accused was cause, effect, any, you if must what consider suffering physi- some or from abnormal mental capacity diminished had on the this mental condition, caused, prevent- which cal however ability defendant’s the "intentional” to form forming from the intent essential ed him which of the crime mental state is an element is the offense with which he constitute capital of murder. charged. Thus, you find defendant's mental that the you have a reason- If from all the evidence you capacity was the extent that diminished to capable able doubt whether the defendant he did inten- have a reasonable doubt whether forming necessary intent to constitute of constituting capital tionally murder, commit acts murder, give capital you must you the offense beyond even if find a reasonable doubt, acts, and find you the benefit of the performed the defendant that he are doubt murder, not have In such guilty capital that he did such intent. defendant find the say guilty by your of a are to verdict that he is event and consider whether or not guilty capital murder ... defendant is not offense. lesser through unless each Appellant’s points offense element of the offense of error 107 proved beyond a are overruled. is reasonable doubt. through In his 111th 114th jury charge Article 36.14 states that a error, appellant trial contends that the court applicable should set forth the without law denying requested jury his instruc erred evidence, expressing opinion sum- on the tions on “reasonable both the doubt” ming up testimony, discussing facts or punishment guilt/innocence phases of tri using jury argument sympathy to arouse the argues requested al. He that because his Further, passions jury. or excite the of the required instructions are to the one similar charge held this Court has that when the (Tex.Crim. Geesa law, accurately describes applicable special App.1991), apply to circumstances
requested
specifically emphasiz-
instruction
justify
application
case which
the retroactive
ing evidence of mental
an im-
retardation is
holding
phases
During
of our
both
Geesa.
proper
weight
comment on
evi-
trial, appellant requested
following
Bell, 682
dence.
S.W.2d at 812.
instruction:
Here,
trial
court instructed the
upon
A
reason
reasonable doubt is based
findings
make
as to
intent to kill
sense,
pos-
common
mere
and not the
and other elements of the offense from the
sibility
guilt.
A reasonable doubt
properly
evidence. The trial court also
sub-
a reason-
kind of doubt that would make
statutory
mitted
definition of “intention-
person
beyond
able
hesitate to act. Proof
6.03(a). Appel-
doubt, therefore,
§
al.” See Tex.Penal Code
a reasonable
must be
*37
presented
lant
extensive evidence on his
proof
convincing
of such
character that a
handicap
emphasized
mental
at
it
person
trial and
reasonable
not hesitate to act
would
during jury argument.
rely
see no reason to
on it.
We
and
jury
conclude that the
this
did not consider
already
error
We have
held that it is not
for
making
findings.
specific
in
A
its
to
a trial court
refuse to define reasonable
calling
instruction
to the evidence
attention
guilVinnocence
during
punish-
the
and
doubt
impaired
abilities was
mental
pre-Geesa
phases
ment
of a
ease. Barnes v.
unnecessary,
might
inappropriately
and
have
State,
at
876 S.W.2d
328.
disproportionate
this evidence
vested
with a
Appellant further
the trial
contends that
significance
jury.
in
legal
eyes
the
See
the
failing
give
in
court erred
to
instruction
Bell,
dant’s use
dangerousness.
issue of future
behalf on the
EVIDENCE
PSYCHIATRIC
further held that Smith’s Sixth
The Court
through
right
In
seven-
to counsel was violated
twelve
Amendment
because,
teen,
had been
trial court
even if Smith’s counsel
contends that the
examination, his counsel
admitting
testimony
informed about the
erred in
of three
the examination would
was not aware that
“involuntary psy-
expert witnesses based on
into
future dan-
inquiry
include an
Smith’s
He
these ex-
chiatric examinations.”
asserts
471, 101
at
gerousness. 451 U.S. at
S.Ct.
his Fifth and Sixth
aminations violated
Smith,
rights
Amendment
under Estelle v.
1866, L.Ed.2d 359
101 S.Ct.
U.S.
Kentucky, 483 U.S.
In Buchanan v.
(1981).
(1987), the
intent joined prosecutor in a motion for sel with the appoint then asked the trial court to State hospitalization involuntary of the defendant psychiatrist appel- disinterested to examine trial, mental illness. At for treatment of granted lant. The trial court the State’s attempted to establish the affirma- defendant request appointed Drs. Fred Fason distur- of “extreme emotional tive defense Quijano for com- Walter examine bance,” reports relying psychological appellant com- petency. A later found by record a social work- read into the letters petent to stand trial. 408-09, at 2910-11. 107 S.Ct. er. Id. at part prosecutor introduced response, the trial, presented psychi- At the State three concerning his ob- report made a doctor Dr. atric witnesses. Fason testified defendant’s mental state about the servations concerning appel- guilt/innocence rebuttal involuntarily hospi- the defendant was when *40 Quijano and lant’s mental retardation. Drs. objected that his Fifth Buchanan talized. punishment testified at Samenow Stanton rights under Smith Amendment and Sixth concerning dangerousness. Samenow future being his counsel had violated because were appellant. Appellant also did not examine during the exam and he had present not been competency complains about a 1977 examina- be that the results could not been informed by for a performed tion Dr. Felix Peebles against him at trial. used previous aggravated rape conviction that was Smith, in the Court Fason, Relying language on Quijano, in by used and Samenow reaching stated: their conclusions. 7-16, May 1990. Appellant later withdrew the notice on
43.
May
competency
place
trial took
1990.
requests
[I]f a defendant
such an evalua-
rebuttal
mental-status evi-
evidence, then,
presents psychiatric
tion or
Concerning
appel-
dence.
his examination of
least,
very
prosecution may
at the
the
re-
lant,
general
Fason discussed his
observa-
presentation
this
but
evidence from
appellant
appellant
tions
such as whether
reports
the
of the examination that
the
during
the
was able
control himself
inter-
requested.
defendant
The defendant
The only
view
whether he was coherent.
privilege
would have no Fifth Amendment
appellant
testimonial evidence attributed to
against
psychiatric
the introduction of this
identify
was whether he
his
could
defense
testimony by
prosecution.
the
present
No
counsel
at the interview.
other
(citations
422-23,
Id. at
759
by
424-25,
the 1977 examination
As for
at 2918-19.46 The Sixth
at
107 S.Ct.
Peebles,
first that it
by
appellant contends
danger
Dr.
Amendment
addressed
Su-
Malone,
However, Clayton
involuntary.
notify
preme
is failure to
counsel of
Court
for the
defense counsel
concerning
appellant’s
future
former
psychiatric examination
ease,
that he
Smith,
rape
testified
unrelated 1977
at
dangerousness.
U.S.
Texas,
There
examination himself.48
1877;
requested the
486 U.S.
Satterwhite
S.Ct.
fore,
occurred.
Amendment violation
249, 254,
no Sixth
100 L.Ed.2d
108 S.Ct.
to
Texas,
680, Further,
referred
expert
no
witness
(1988);
U.S.
Powell v.
in the
by appellant
3146, 3148,
testimonial statements
ture Next, that the Peebles’ appellant maintains Therefore, it. no error occurred. about rights. Fifth Amendment exam violated his of error sixteen and seventeen are Points opinion of future He asserts Samenow’s overruled. on the Peebles’ dangerousness was based never made such examination. Samenow Quijano punishment, Dr. testified At merely stated that the Pee- statement. He appellant’s dangerousness. future as many documents he bles’ exam was one of However, Quijano opinion on did not base his Appel- coming his conclusion. reviewed in appellant: his examination of Quijano Fason also asserts that lant Quijano, ques- Q. [By Dr. the last State] However, Qui- exam. relied on the Peebles’ you pertained I tion that asked and, jano he used the exam even never stated committing a likelihood of this Defendant exam, though he reviewed the he mentioned future, criminal act of violence dangerous- testify not as to future Fason did testified, you elements and various ness. opinion, arrived at that basis that you, you, specifically I ask did want inapplicable is to the facts We hold Estelle rely upon your arriving opinion, at that con- of this case. The Peebles’ exam was Defendant, personal interview with the prior at issue years ducted to the offense two May, opinion to reach that or back years capital prior to the here and thirteen conclusion? subject of this murder trial which is the appeal.49 As stated in Nelson v. State: we No, A. I did not. implicated not Quijano The Fifth Amendment is Because did use his examination conclusion, because, appellant made his no error at the time appellant to reach his statements, he was not confronted with Hernandez v. occurred.47 See essentially agent for someone who was an gather whose function was of error twelve and thirteen are over the State Points him in might against evidence that be used ruled. motions, had "not defi- hearing pretrial He further testified that he 46. At a on the trial view. nitely diagnosed him, by previous going I am Quijano’s that Fason’s and examina- court stated Quijano examina- did not use his evaluation.” would not be used at trial unless the de- tions Quijano opinion. evidence; appellant this tion of to reach put psychiatric at that fense dealing records viewed extensive might be admissible.” We also the "evidence history. More than one of mental and criminal present appellant’s counsel was at both the note appellant reports an antiso- state that had these Quijano examinations and would not Fason and personality cial disorder. appellant either doctor to read his statuto- allow ry rights. hearing evidentiary at an 48. Malone testified pri- concerning evidence of the the admission of complains Quijano Appellant specifically 47. phase. during punishment rape conviction opinion expressed had an also personality and that disorder” "antisocial opinion interview of must have come from his that the trial which It should be remembered actually appellant. Appellant subject appeal is the second mischaracterizes of this First, appeal- diagnosis. we note that since his first case was trial of source Supreme See any type Court. Quijano ed to and reversed stated that he did observe Penry Lynaugh, supra. appellant during the inter- of mental illness in *42 760 presentation opening prior
connection the crime he was to of with for which statement only first incarcerated. case when State State’s makes one. 868 Moore S.W.2d (Tex.Crim.App.1992) 185 790-91 The State did (statements etc., psychiatrist, to made while request opening not or make an statement offense). previous for a The incarcerated during punishment. 65 is Point error trial court did not err. of error four- Points overruled. teen and fifteen are overruled. eighteen through error Finally, appellant asserts that appellant argues that the trial court erred improperly State used and each of relied on admitting through exhibits 91 and State’s experts’ testimony during closing argu Appellant alleges 102. these contain exhibits specifically ment. He also states that documents which are inadmissible because prosecutor argued punishment at Fason (1) (2) irrelevant, they hearsay, constitute are dangerousness. testified as to future Be (3) prejudicial have character out- which appellant object cause failed to (4) value, probative weighs their his violate arguments made, pre these when he has right to confront wit- Sixth Amendment nothing Tex.R.App. served for our review. (5) nesses, and violate his Fifth and Sixth Johnson, 52(a); Proc. at 291. S.W.2d rights respect Amendment to custodial appellant. examinations of We find no re- PUNISHMENT PHASE error. versible error, appellant In his 65th appellant We first note that made no denying avers the trial court erred objections Therefore, 9850at trial. exhibit appellant’s request opening make state an nothing preserved our review. Tex. phase. Appellant ment at punishment Johnson, 52(a); RApp.Proc. at S.W.2d authority. relies on as Article 36.01 291. Point error is overruled. proceed Article 36.01 sets out order of ings guflt/innocence phase of trial. Further, has appellant provided no The failure to allow a to make an defendant argument authority regarding or his relevan opening provisions of statement under the cy, prejudice,51 and custodial examination article constitutes reversible error. Far Therefore, consider claims. we these issues (Tex.App.— rar inadequately presenting briefed and as noth 1989). However, Dallas does Article 36.01 74(f); Tex.R.App.Proc. ing for our review. apply punishment phase of trial. Robinson, 851 at 222 n. 4. cases, capital requires For Article 37.071 91, 96, 97, 100, 101, Exhibits trial a separate court to conduct sentenc- particular 102 each include records from a ing proceeding before the to determine school, facility, mental-health or other insti shall whether the defendant be sentenced inv tution with which had been imprisonment. article is death life appellant’s olved.52 These records contain as the defen- silent to whether State or scores, I.Q. mental various health back right opening has to an dant statement. ground, Appellant and evaluations. also cites 91, 96, appellant’s argu- specific portions Even were to follow of exhibits and 97 we pertaining documenting applicable ment that Article 36.01 is at the to medical records punishment alleged past trial phase, the court still would homosexual arson-related denying request. prosecutor have Arti- activities. referred to the erred exhibits, disputed they in some cases cle 36.01 a defendant to make before allows report progress University Medical 50. Exhibit is an educational 52.The of Texas Branch-Gal- report veston, Corrections,
761 evidence, 17,1973, September discussing past arson were admitted into Ws cross- ed Dr, charges appellant’s reaction to expert and father’s examination of Randall defense appellant’s at the Me- homosexual activities Price and others. The documents were of- xia School. during fered cross-examination Price. complains forego- that first expert 703 and 705 Rules allow hearsay hearsay exhibits and contain un rely on inadmissible evidence witness to hearsay. testifying.
within Aside from stated those der limited circumstances when above, appellant pointed 701, has not out which 707 825 See Joiner v. portions of hearsay. the exhibits contain Af- (Tex.Crim.App.1992). This Court has said exhibit, expert ter a review of we during each conclude of an cross-examination any objectionable witness, hearsay seems results improper to involve it is disclose the appellant’s disciplinary problems youth, asking leading as by questions when studies arson, concerning expert his activities his has previous it not been established that the rape conviction, alleged testimony. in his Ra and his relied on those studies homosexuali- (Tex. ty. agree por- We mirez 651 these However, Crim.App.1991). testi hearsay. tions of the Dr. Price exhibits constitute See However, these fied that he did review two documents any Rule 801. error the admis- request at the of defense counsel. Because harmless, of the sion evidence was because appellant’s Dr. relied on evidence of Price presented the evidence also and arson-related acts in his tes homosexual through other Tex.R.App.Proc. means. See timony, 52(a). questions these the State’s about topics im during cross-examination were not before, As noted exhibit 98 was admitted proper. Therefore, objection. without other ref- regarding appellant’s disciplinary erence Appellant next maintains that problems properly while in school were ad- these his admission of documents violated rights mitted into appel- evidence. Evidence of confrontation clause of the under the charge lant’s arson came into evidence Sixth Amendment because the documents through testimony generalized exhibit 95-c53 and the contain statements from sources aunt, However, Patsy reliability. appel- his Fuller Proof out-of- Ross. unknown statements, by previous court unidentified infor rape lant’s conviction even came mants, sentencing pur for through “pen plea are admissible packet” papers offense,54 poses and do not violate confrontation testimony extraneous clause, Lowe, where there is additional corrobora County, Nell the District Clerk of Polk (5th Young, tion. 981 F.2d U.S. v. 187 testimony rape and the of the Final- victim. — denied, U.S., Cir.1992), cert. Allman v. ly, homosexuality of appellant’s also U.S. -, 2454, 124 670 113 S.Ct. L.Ed.2d through unobjeeted-to came into evidence —U.S., U.S. -, 113 Crow v. S.Ct. sister, testimony Trudy of his Ross. (1993); v. Rodri L.Ed.2d U.S. further regarding We note that evidence (5th Cir.1990), 1324,1328 guez, cert. 897 F.2d appellant’s homosexuality and arson-related denied, 498 U.S. S.Ct. properly during activities was also addressed (1990). disputed state L.Ed.2d 124 the State’s of Dr. Price. cross-examination medical ments from records were Dr. Price See Rules and 705. testified by by statements in-court corroborated made eight specific reviewed two witnesses for cross-examination available by documents his brief: a cited by appellant. other records submitted 15,1973, August from letter dated Dr. Exter Leikam, addition, rights to Mr. William which of confronta Bell discusses fire-setting tion and are not absolute. alleged homosexual and activities cross-examination necessary by appellant, an admission note to the Cross-examination is where reliability indicia of suffi Hospital Austin Adolescent Center dat- the evidence bears State 60, 88, 89, objection made to exhibits and 90. 53. No exhibit 95-c State's hearsay grounds. *44 testify as an integrity of the fact- Dr. Stanton Samenow cient to ensure the State, Appellant ar finding process. expert Porter v. on mental retardation. 742, give qualified (Tex.Crim.App.1979). gues 745 Most of was not that Samenow disputed many years subject. Appellant opinion statements were made expert on the doctors, ago by appellant’s family, and nurses expertise on question the doctor’s does not appellant’s in the context of medical treat subject he testified. any about which other ment, in of this criminal and not the context Thus,
proceeding. the circumstances sur special knowledge which rounding these statements show indicia of expert opinion give an qualifies a witness reliability, had no obvi since declarants education, specialized derived from be against appellant and in ous motive for bias study experience, a of technical practical they many while cases described events works, these varying a combination of of error were fresh on their minds. Points State, 702; Holloway 613 things. Rule eighteen through are 25 overruled. 497, (Tex.Crim.App.1981). S.W.2d expert pos an a witness offered as Whether appel of error ques required qualifications is sesses the trial court erred in lant contends that largely in the trial court’s tion which rests mitigation excluding exhibits offered in two discretion, to admit or ex and the decision during punishment phase. The trial testimony disturbed will be clude containing the court excluded these exhibits of discretion. Duckett absent a clear abuse appellant’s mother mental health records of (Tex.Crim.App. they Appellant ar because were irrelevant. 1990). expert wit party proffering gues they relevant because the records were showing ness bears the burden appellant’s mother contained evidence that specific qualified on the matter witness is illness, from mental thus bol suffered severe question. Rule 702. testimony mitigation stering the of his wit by her. nesses that he had been abused objected testimo- Appellant to Samenow’s question The mental health records de- qualified as ny he had not been because hospitalization appellant’s scribed being expert mental retardation. We on post-partum psychosis on two mother for questions disagree. asked various The State The records did not discuss occasions. experience and train- regarding Samenow’s appellant’s mother abused whether psychology. clinical Sam- ing in the areas of children, mental or even whether her her to his extensive educational enow testified likely it that she would abuse condition made professional memberships, background and There was no evidence her children. publications he authored and listed several problems led to psychological her would have fur- dealing psychology. He with criminal appellant explicitly of- child abuse. Because teaching he had been ther testified that testimony purpose of rein- this for the fered on criminal behavior professional seminars forcing his mother abused his evidence that including mental health groups, for various was, therefore, him, it was not relevant and 1977. He conducted professionals, since 401 and 402. Points inadmissible. See Rules study psychiatry for seventeen forensic 28 are overruled.55 of error 27 and Hospital, years at Elizabeth’s which St. Institute for Mental run the National Health. erred in allow maintains that the trial court explained mother’s sup- how the defendant’s inapplicable cases in sue also cites two sexual abuse of mental disorder resulted her theory records should have port of his that the Appellant’s mother’s records in defendant. Id. we held that admitted. In Gribble v. been with her case do not link child abuse records the instant mother's mental health the defendant’s potential attempting or even mention actual or condition where defendant was were admissible by appellant case cited child abuse. The second unstable because show that his childhood was non-binding facts problems on this Court and involves hospitalized for mental his mother was result, and, completely which are unrelated were sent years the children as Black, F.Supp. Buttrum v. case. See to live with various relatives. (N.D.Ga.1989). at is- 1314-1315 The records 75-76 world, I in the free If he was if he had DR. PRICE:
After the
asked Samenow
State
dangerous.
consider him
IQ
taken
would
appellant’s various
tests
reviewed
years
they pertained to his
over the
and how
objection does not
Appellant’s trial
retarda-
varying degrees of assessed mental
appeal.
comport
the issue raised
tion,
objected
had
the State
Therefore,
nothing for our
preserved
has
expertise
not laid a foundation for Samenow’s
Barnes,
325; John
876 S.W.2d at
review.
*45
The trial court over-
on mental retardation.
son,
note that
at 293. We do
803 S.W.2d
objection.
then testified
ruled his
Samenow
objection.
proper
made the
appellant later
tests,
familiarity
I.Q.
their
about his
However,
opin
already stated his
Price had
determining
retarda-
relationship to
mental
timely,
objection must be
To be
ion.
tion,
the various
and the differences between
soon
opportunity or as
raised at the earliest
given.
tests that are
apparent.
objection becomes
ground
as the
of
its discretion
The trial court did not abuse
Barnes,
52(a);
Tex.R.App.Proe.
testify
allowing
in
Dr.
about the
Samenow
Appellant’s
point
26th
of error is
at 325.
relationship
appellant’s I.Q.
between
tests
overruled.
and his mental retardation. Point of error
77 is overruled.
error 29 and
of
erred
appellant contends that the trial court
argument,
In a similar
in
of
that,
jury
and in not
instructing
in
26, appellant contends that the State
error
that,
given
if not
allowing in evidence
lay opinion
elicited an inadmissible
which was
spend
he
the remainder
penalty
death
would
scope
outside the
of the defense witness’
jail.
his life in
of
Dr.
expertise. Specifically, appellant called
expert
Randolph
testify
Price to
as a defense
appellant attempted to
punishment,
At
regarding neuropsychology, organic brain
following
pa-
of
have admitted the
“waiver
retardation,
damage, mental
and the effects
role”:
malingering
psychological
on relevant
of
July
cross-examination,
ques
tests. On
the State
danger
appellant’s
Price about
future
tioned
I,
Penry,
putting my name
Johnny
am
contends that
ousness.
State
give
paper
that I want to
on this
to show
preserve any
agree.
failed to
error. We
my
up my right
parole
for the rest
change
I cannot
life.
I understand that
following
during
occurred
cross-exam-
later,
I
have to
my mind
and that will
ination:
prison,
parole.
serve life
without
your
THE
Based on
ex-
PROSECUTOR:
you gave
them,
tions,
nished to
day,
amination of those records that were
Honor.
No
DEFENSE COUNSEL:
dangerous
basis
s{t
experience and all of
and based
your opinion,
you,
n
Dr.
asking
individual?
as well as those
Mount,
told the
n
on all of
this witness about
Doctor,
if
jury
n
you
Objection, Your
your qualifica-
your training,
about
is
[*]
saw
others that
[appellant]
yester-
n
that,
fur-
the issue waiver
binding.
the door
been
ness.
“opened argument as to
The trial court denied
document
On
jury’s
appeal, appellant cites no
admitted into
He notes that
He instead
consideration
binding
why
is nevertheless
to other evidence
evidence, it would have
this
is
claims that whether
if the document had
_/s/
irrelevant,56
of future
Johnny Paul
document would be
authority or
dangerous-
relevant to
but that
request.
on the
Penry
subject
testimony.
of his
is not the
Penry’s parole, perhaps
realistic likelihood
for both sides.”
objection.
including expert witnesses
THE COURT: Overrule
considering appellant's
argues
signed
it. We find this ironic
fact he
that the
intelligent
arguments that he was not
only
He also
earlier
enough
is the
relevant fact.
document
sign
waive his Mi-
prove
his confession or
prepared to
that the defense was
states
rights.
signed
randa
document meant when he
knew what the
on
improper argument based
objected
charge as
on the State’s
Appellant further
Appellant com
possibility
parole.
“instruct the
a whole because it failed to
following argument:
plains of the
presume
will
that it must
defendant
prison
remain in
for his entire life when
it is
... said that
[sic]
Dr. Felix Pebbles
evidence,
considering
any,
if
to a
related
[ap-
opinion, that
my
professional
further
”
‘continuing
society.’
threat
custody, that
released from
pellant] were
persons.
dangerous to other
he would be
parole
The matter of
or a defen
May
1977. Two
That
written on
proper
consid
dant’s release thereon is not
later,
[appel-
years
August
pun
jury’s
deliberations
eration for
custody
parole,
released from
lant] was
capital
phase of a
murder
trial.
ishment
later,
sixty days
he murdered
less than
(Tex.Crim.
1, 16
Stoker v.
Carpenter. You have a
raped Pam
App.1989);
White
that that never occurs
responsibility to see
*46
(Tex.Crim.App.1981); but see Simmons
708
again.
—
Carolina,
U.S. -,
114
v.
S.Ct.
South
object
argument or
to the
Appellant did
(1994).
2187,
jury’s only
A
L.Ed.2d 133
129
disregard but
an instruction to
request
punishment phase is to answer
task at the
jury had al-
a mistrial after the
moved for
in
special
required
Article
the
issues as
begin
ready retired to
its deliberations.
Stoker,
It has
tutional to
a burden
culpability
the moral
to be sentenced
lacked
circum-
mitigating
sufficient
to establish
to death.
the evi-
by
preponderance
of
stances
649-651,
preclude
Eighth
The
Amendment does not
at
110 S.Ct.
dence. Id. 497 U.S.
mentally
persons.
3055-56,
the
of
retarded
that it was
under the facts
Pohlot,
889,
case.
827 F.2d
897
United States v.
(3rd Cir.1987) (under Insanity Defense Re
(Tex.
In Cowles v.
An
to this rule is where
prohibit
of mental dis
process to
evidence
is an
intent
element
negate
culpability
ease or defect to
essential
offense
tried,
being
is
as in the
which
accused
denied,
element),
cert.
459 U.S.
degrees
different
of murder and the “with
(1983);
L.Ed.2d 466
State v.
S.Ct.
intent” crimes.
McKenzie,
608 P.2d
452-
Mont.
Id. at 610. The
held that such evi-
viability
capaci
Court
(recognizing
of diminished
rejected
properly
dence was
in Cowles be-
ty
under
former common law
defense
specific
an element of
cause
intent was not
denied,
statute),
449 U.S.
under current
cert.
the crime at issue.
Id.2
(1980).
1050, 101
Most of the state and federal courts
capacity
negate
or raise a reasonable doubt as to
nize that evidence of diminished
capacity
spoke
capacity
evidence of diminished
2. This Court
of diminished
held
case, Wagner
negate
generally court admissible.3 One views bar
ring contrary as to such evidence our adver
sary system process: and as a violation due guilt may
A to reasonable doubt as arise case, only prosecution’s from the but casting
also from defense evidence doubt
upon previously appeared what have Denying any op-
certain. the defendant
portunity prosecution’s controvert by
case relevant reliable and evidence of impairment, cutting
mental addition to
against concept our traditional of the ad- system, downgrades
versary prosecu- something
tion’s burden less than by process of
mandated due law.
Hendershott, 393; P.2d at see also Pohl
ot,
(suggesting
barring “may evidence relevant to mens rea unconstitutional”); Gonzales,
be State (1984) (exclu
Adz. 681 P.2d
sion of evidence of mental disease rele when
vant issue is a a material denial of due
process). join
Accordingly, I majority’s opinion understanding holding
with the that its does ability of a limit the defendant to offer argument support
evidence and a theo-
ry capacity. of diminished by explained suggests 3. As one commentator: that a rule of strict rele- commentator here, logically vance would be more defensible The simply negates at issue “defense” one that at most effective: required state Like of mind. defenses, ... of mental disease or defect often evidence proof all such failure of no it contains bearing has little on whether defendant special opportunity exculpate the defendant recklessness, knowledge, purpose, acted apart with standing requirements from negligence. The definitions these terms long given as offense definition.... As state definition, do not a “normative” assessment of call for required of mind is the offense blameworthiness; they specific call for rather suggesting the absence of that findings concerning state required necessarily the actor's of mind would state of mind be admissible, respect objective special elements of the absent restric- relevant tions, offense, e.g., aware that required was the actor his con- determine whether all being. were duct would cause the death of human elements of the offense satisfied. H., 64(a) concerning § Evidence disorders lead to im- Criminal Robinson, Law Paul Defenses *51 conduct, (footnote omitted). (1984) paired ability example, at 276 to control Wagner simply culpability indicate that evi- is quired by relevant to the re- Cowles and in Texas A defect is definition. rule of dence of mental disease or admissible to such offense intent, negate specific culpable well do more limit but lesser strict relevance improper rule, testimony admitting psychiatric than arbi- mental states. Such negate specific trary culpable but not rule based on such distinc- intent other artificial states, severely general specific tions as intent. mental has been criticized. Id. at H., 64(a) (citing § various criticisms of 277-78 ing rule restrict- Criminal Robinson, Law Defenses Paul crimes). specific (Supp.1993). intent at 38-39 such evidence to One notes from the Mexia State School. The Department Texas Austin disciplinary problem. had a Hospital, Hospital, State Rusk State Mexia State School, Independent Goose Dis- Creek School However, does cite us Rule 403. trict, MHMR, County Polk and the Reha- Texas applicability explain he fails to its to the case at bilitation Commission. argu- hand. We decline to make ments for him.