Battaglia sentenced to die for killing girls
Jury discounts bipolar illness; 'burn in hell,'
ex-wife tells him
Steve McGonigle - The Dallas Morning News
John David Battaglia was sentenced to death
Tuesday after a Dallas jury rejected defense arguments that his
bipolar illness should lessen his punishment for murdering his two
Mr. Battaglia, 46, showed no reaction to the
verdict or to an emotional statement read by his former wife Mary
Jean Pearle in which she wished him to "burn in hell forever" for
the slayings of Faith, 9, and Liberty, 6.
"You are one of the most heinous murderers of
modern time," Mary Jean Pearle told ex-husband John Battaglia in
court Tuesday after the jury sentenced him to death. "Hitler
didn't kill his own children. [Jeffrey] Dahmer didn't kill his own
Ms. Pearle, 39, vowed to spend the rest of her
life helping others escape domestic violence and told Mr.
Battaglia to forget about her.
"I would like to say the next time you see me
is when they put the needle in your arm," she said. "But I'm not
going to waste the time to be there."
Mr. Battaglia, who spoke only once during the
weeklong trial to proclaim his love for his daughters, waved to
his father and stepmother as he was led from the courtroom by
His father, also named John, told reporters
that the loss of his granddaughters had been compounded by the
loss of his son.
"No matter what they think or say, he's still
my son, and I still love him," he said.
The jury reached its decision after hearing
four days of testimony in the trial's punishment phase, which
centered on whether Mr. Battaglia was suffering from a bipolar
disorder when he shot his daughters to death in his Deep Ellum
After deliberating 6 ½ hours, the jury of seven
men and five women concluded that it had heard no evidence
warranting a life sentence. Jurors also concluded that Mr.
Battaglia would be a continuing threat to society.
Jurors left the courtroom without talking to
reporters after state District Judge Janice Warder sentenced Mr.
Battaglia to death.
His sentence came two days short of the first
anniversary of the death of his daughters, who were shot despite
pleas for mercy while their mother listened over a speakerphone.
At the time of the shootings, Mr. Battaglia
thought he was about to be arrested for violating probation on a
domestic violence charge. Witnesses said Mr. Battaglia blamed Ms.
Pearle for his predicament.
Ms. Pearle testified that Mr. Battaglia had
told his daughters that he might be arrested when he picked them
up for their weekly visit. The girls were apprehensive about
seeing their father, Ms. Pearle said.
"Liberty hid under her bed, not wanting to go
to dinner with you that Wednesday night," Ms. Pearle read from her
victim statement. "But I said, 'Oh, it will be OK.' I trusted you
with their lives."
Prosecutors described Mr. Battaglia as an angry,
vindictive man with a long history of violence toward his spouses.
The murders were "the ultimate act of revenge" and showed that Mr.
Battaglia had no conscience, they said.
"These facts cannot get any clearer," Assistant
District Attorney Pat Kirlin said in closing arguments. "If a man
can do this and use his kids as pawns to get at his ex-wife, he
can do anything."
Lead prosecutor Howard Blackmon said after the
sentencing that he agreed with the jury.
"I think they came to the right decision based
on the horrific nature of this crime," he said.
Mr. Battaglia's defense attorneys asked the
jury to sentence their client to life in prison because, they
contended, there was conclusive psychiatric evidence that the
murders would not have occurred if not for his bipolar condition.
"You can't punish a person who is mentally ill
the same way you would a person who is not," defense attorney Paul
Mr. Johnson noted that three psychiatrists,
including one appointed to examine Mr. Battaglia by Judge Warder,
agreed that Mr. Battaglia would not be a threat to society if he
received proper medication.
Mr. Johnson said he was not surprised by the
"I think we put up for this case and for this
evidence about as good a defense [as possible]," he said. "It's
obvious the jury took the time to consider the issues."
Mr. Johnson told jurors that sending Mr.
Battaglia to prison for life would be worse than a death sentence,
but he said Mr. Battaglia prepared himself long ago for being sent
to death row.
"John made peace with himself over what
happened several months ago," Mr. Johnson said. "John would rather
die than live day for day with what happened."
He called the case "a tragedy for all involved,
including the defendant."
Under state law, the sentence must be
automatically appealed to the Texas Court of Criminal Appeals in
Austin. Judge Warder said she was appointing an attorney to handle
in two daughters' fatal shootings at loft apartment
By Joel Anderson
- Associated Press Writer
The Lubbock Avalanche-Journal
Thursday, May 3, 2001
DALLAS — An accountant was charged Thursday with
shooting his two young daughters to death as he argued on the
telephone with his ex-wife.
John David Battaglia, 45, was booked into Lew
Sterrett Justice Center on two counts of capital murder, Dallas
County sheriff's officers said.
Liberty Battaglia, 6, and Faith Battaglia, 9,
were found slain in a pool of blood inside the man's downtown-area
loft. Police who had sought Battaglia for questioning in the fatal
shootings also detained an unidentified female friend early
The case began unfolding Wednesday, when
Battaglia contacted his former mother-in-law, saying he needed to
reach his ex-wife.
"He called my house and said he had to ask ...
a question," Dorrace Pearle said. "She phoned him to see what it
Mary Jean Pearle, the girls' mother, was
arguing with Battaglia by telephone from her home in the North
Dallas suburb of Highland Park when she heard five shots fired
about 7:30 p.m.
Pearle heard one of the girls say, "No, Daddy,
no, Daddy, no," before the mother heard gunshots, a relative said.
Highland Park police tipped Dallas officers,
who broke into Battaglia's loft apartment Wednesday night and
found the girls slain amid half-unpacked boxes and numerous guns
and rifles. The bodies were taken to the Dallas County medical
examiner's office for autopsies.
Investigators removed seven rifles from the
loft. They said they did not immediately know which weapon, if any,
had been used in the shootings.
Witnesses told police that Battaglia was seen
leaving the complex in a black extended-cab pickup truck. Douglas
Cartmel said he saw the pickup leave and later saw the mother
"She was crying and freaking out," Cartmel said.
"She looked in really bad shape."
Officers staking out nightclubs in the Deep
Ellum entertainment district several blocks from the lofts spotted
a truck that matched the description of Battaglia's vehicle
shortly after 1 a.m. Thursday. The driver was apprehended after a
"I would consider this strange," Sgt. David
Graham said. "It's surprising that he would have been located so
close to the crime scene."
The children had lived in Highland Park with
their mother following a divorce about a year ago, Dorrace Pearle
Battaglia has a previous criminal history,
according to Dallas County legal records. He was charged with two
counts of assault for a Christmas Day 1999 incident, receiving a
sentence of two years' probation and a $1,000 fine on one count,
according to court records.
The grandmother said Battaglia had beaten her
daughter on that date. Mary Jean Pearle was so afraid of her
husband after the reported attack that she tried to limit contact
with him, her mother said.
Each Wednesday, Mary Jean Pearle took her
daughters to a shopping center, where Battaglia picked them up for
dinner, the grandmother said.
The younger daughters were described as good
students at Bradfield Elementary School in Highland Park. The
grandmother said Liberty was involved in ballet, while Faith
played the violin.
"They were beautiful, perfect little children,"
Dorrace Pearle told The Dallas Morning News Wednesday. "We're just
The school district dispatched about a half
dozen psychologists and eight counselors to Bradfield Elementary
on Thursday to meet with distraught parents and pupils. Parents
also were handed information about helping their children deal
with crises and death.
"Our counseling staff tells us that the best
thing for young children is to go about their routine, but to
continue to provide a loving, supportive environment," school
district spokeswoman Linda Adkins said.
At the start of classes, teachers read a brief
statement: "I am very sad to tell you that two of our students,
Liberty and Faith Battaglia, died last night. We have wonderful
memories of our friends and the best thing we can do today is to
be kind to each other and be the very best person we can be."
In the Court of Criminal
Appeals of Texas
John David Battaglia,
The State of Texas
On Direct Appeal from Criminal
District Court Dallas County
Cochran, J., delivered the opinion of the unanimous
O P I N I O N
Appellant was convicted in April
2002 of capital murder for the shooting deaths of his two
young daughters. (1) Pursuant to
the jury's answers to the special issues at the punishment stage,
(2) the trial judge sentenced appellant to death.
(3) Direct appeal to this Court is automatic.
(4) Appellant raises twenty-one points of error,
including a challenge to the sufficiency of the evidence at
punishment. We affirm.
Mary Jean Pearl was married to appellant for
nine years, from 1991 to 2000. They had two daughters, Mary Faith,
who was born in January 1992, and Liberty, who was born in January
1995. Throughout their marriage, appellant was verbally abusive
Pearl, and she filed for divorce when she
became afraid that appellant would be physically violent. On
Christmas morning 1999, before the divorce was final but during
the couple's separation, appellant went to Ms. Pearl's house to
pick up the girls for church. Appellant became angry at Ms. Pearl
and attacked and beat her in front of the children. As a result of
that incident, appellant was charged with assault and placed on
Appellant's and Ms. Pearl's divorce was final
in August 2000. An Agreed Protective Order was issued at that time
which prohibited appellant from committing family violence against
Ms. Pearl or their daughters, and from stalking, threatening, or
harassing them. The order also prohibited appellant from
possessing a firearm.
Around Easter 2001, Ms. Pearl received a phone
message from appellant in which he angrily swore at her and called
her names. She reported the call to appellant's probation officer,
and a warrant was issued for his arrest. Appellant learned that
his case was being considered for a probation revocation and on
Wednesday, May 2, 2001, he found out that a warrant had been
issued for his arrest. He was assured by a police officer that the
warrant would not be executed in front of his children and that he
could make arrangements with his lawyer to peacefully turn himself
Appellant had plans to have dinner with his
daughters that evening. While making plans on the phone about
where to eat, appellant told the girls that he was not very hungry
because he might be arrested that night and would not see them
again for a year or more. Ms. Pearl dropped the girls off with
appellant at the agreed meeting place and then went to a friend's
house. When she arrived, she received a message that the girls had
called and wanted to ask her something. Ms. Pearl dialed
appellant's phone number. Appellant answered the phone, which was
on the speaker-phone function, and ordered Mary Faith to "ask her."
Mary Faith said, "Mommy, why do you want Daddy to go to jail?" Ms.
Pearl began to tell appellant not to do this to the girls, and
then she heard Mary Faith say, "No, daddy, please don't, don't do
it." Ms. Pearl yelled into the phone, "Run, run for the door." She
heard gunshots, and appellant scream, "Merry fucking Christmas."
After hearing more gunshots, Ms. Pearl hung up and called 911.
The police discovered the girls' bodies in
appellant's apartment. Nine-year-old Mary Faith had three gunshot
wounds, including a shot to her back which severed her spinal cord
and ruptured her aorta, a contact shot to the back of her head
which exited her forehead, and a shot to her shoulder. Either of
the first two shots would have been rapidly fatal.
Six-year-old Liberty had four gunshot wounds
and a graze wound to the top of her head. One shot entered her
back, severed her spinal cord, went through a lung, and lodged in
her chest. After losing about one third of her blood, she received
a contact shot to her head which passed through her brain, exited
her face, and was immediately fatal.
The girls were shot with a semiautomatic pistol
which was found near the kitchen phone. Mary Faith's body was
found by the phone in the kitchen. Liberty's body was found ten to
fifteen feet from the front door.
After shooting his daughters, appellant went
with a girlfriend to a bar and then to a tattoo parlor where he
got tattoos related to his daughters. Appellant was arrested next
to his truck outside the tattoo parlor. It took four officers to
restrain and handcuff him. Officers took a fully loaded revolver
from appellant's truck after his arrest.
Police recovered two rifles, three shotguns,
and a pistol (in addition to the murder weapon) from appellant's
apartment. The morning after the offense, police retrieved an
answering machine from Ms. Pearl's house. There were two messages
from Mary Faith stating that they had a question and asking Ms.
Pearl to call them back. There was also a message from appellant,
left after the murders, in which he told the girls goodnight,
stated that he hoped they were resting in a different place, that
he loved them and that they were very brave, and that he wished
they had nothing to do with their mother, that she was "evil and
vicious and stupid."
During the punishment phase, the jury heard
evidence about appellant's violent relationship with his first
wife. Michelle Gheddi was married to appellant for two years, from
1985 to 1987, and they had a daughter, Kristy. Ms. Gheddi
described several incidents during her marriage when appellant
became angry and struck or threatened her. Twice appellant was
physically violent toward Ms. Gheddi's son from a previous
marriage. Once when Ms. Gheddi was traveling with appellant in the
car, he became angry at some other motorists and tried to reach
for a gun he had in the car. They separated after an incident in
which appellant struck Ms. Gheddi while she was holding Kristy,
causing her to drop the child.
Ms. Gheddi obtained a protective order against
appellant. Nonetheless, appellant came to her house, watched her
through the windows, and pounded on her doors and windows. He
followed her in his car. He tapped her phone line. He constantly
called her house and office at all hours of the day and night. He
called Ms. Gheddi's employers and creditors and made false
statements about her. He threatened to kill himself and her, and
once described to her in detail how he planned to cut her up and
kill her with a knife. One night Ms. Gheddi woke up sometime after
midnight to find appellant standing over her bed and holding her
shoulders down. He wanted to have sex, but Ms. Gheddi refused. Ms.
Gheddi filed a police report about the incident.
A short time later, appellant called a partner
at the law firm where Ms. Gheddi was an attorney. Appellant told
him that Ms. Gheddi was having an affair with another partner in
the firm and that she was carrying his child. Appellant threatened
to go to the press with the information unless the partner
convinced Ms. Gheddi to drop the charges against him. As a result
of these events, the law firm initiated security measures to deny
appellant access to their offices.
In January of 1987, appellant tried to force Ms.
Gheddi's car onto the median of the freeway. Appellant pulled up
next to her and pointed his finger at her as if holding a gun. He
then threw a rock through his open window at her car. Ms. Gheddi
filed another police report, and appellant was arrested. Appellant
spent several days in jail. When he was released, he stopped
harassing Ms. Gheddi and apologized for his behavior. Things
improved for a few months, and appellant and Ms. Gheddi were able
to work out a divorce agreement. However, appellant eventually
became volatile again and angrily hit Ms. Gheddi while he was
picking up their daughter. After having been hit by appellant on
one occasion and pushed down the front steps to her house on
another, Ms. Gheddi again filed charges against him. Appellant
begged her to drop the charges, but she refused. Later that day,
appellant approached Ms. Gheddi outside of her son's school.
Smiling as he came toward her, appellant said, "If I'm going back
to jail, I'm going to make it worth my while." He then beat Ms.
Gheddi until she lost consciousness, breaking her nose and
dislocating her jaw. Ms. Gheddi was hospitalized. After appellant
threatened to do the same to Ms. Gheddi's son, she moved to
About noon on the day that Mary Faith and
Liberty were killed, Ms. Gheddi got a message on her answering
machine from appellant in which he stated that maybe Ms. Pearl
should lose her kids. That evening, appellant called Ms. Gheddi's
house again and left a message for Kristy. He told her he was
sending her college money in an envelope and that she should
invest it wisely. An hour after that call, Ms. Gheddi found out
that appellant had killed Mary Faith and Liberty. Ms. Gheddi
stated that she had always been afraid that appellant would hurt
The defense called a forensic psychiatrist, Dr.
Judy Stonedale, who testified that appellant had suffered from
bipolar disorder since his mid-to-late twenties. Dr. Stonedale
also testified that some people with bipolar disorder have
psychotic episodes and lose touch with reality. She believed that
appellant was experiencing a psychotic episode at the time he
killed his daughters. Dr. Stonedale stated that bipolar disorder
is treatable with medication, and that appellant has been much
better since taking medication in jail. She concluded that
appellant would not be a future danger if given a life sentence
because he would be medicated and in a controlled environment. On
cross-examination, Dr. Stonedale stated that bipolar disorder is a
chemical imbalance, not organic brain damage. She also agreed that,
at the time of the murders, appellant knew what he was doing.
Dr. Edward Brown Gripon, another forensic
psychiatrist, was appointed by the court to evaluate appellant on
the issues of sanity and competency. Dr. Gripon also diagnosed
appellant with bipolar disorder. He concluded that appellant would
present a low risk of continued acts of criminal violence. On
cross-examination by the State, Dr. Gripon agreed that appellant
knew what he was doing at the time he murdered his children and
recognized that it was wrong.
Forensic psychiatrist Dr. Richard E. Coons
testified for the State on rebuttal. Dr. Coons concluded that
appellant killed his children as an act of anger and retribution,
to punish Ms. Pearl. Although Dr. Coons agreed with the other
psychiatrists who had testified that appellant probably has
bipolar disorder, he believed appellant has a milder form of it
than the other two had opined. Dr. Coons stated that appellant has
Bipolar II disorder rather than Bipolar I. Bipolar I is
characterized by extremely manic behavior, while those with a
Bipolar II disorder have hypomanic, or below manic, episodes which
do not interfere with their functioning. Dr. Coons further
testified that appellant's conscience would not keep him from
committing offenses in the future because "[h]is conscious [sic]
didn't keep him from committing the instant offense." He also had
concerns about whether appellant would remain on his medication in
jail because appellant liked the manic states he experienced
without the medication. Dr. Coons stated that appellant exhibited
a number of characteristics of a person with antisocial
personality disorder and that appellant rationalized and blamed
others for his actions.
Appellant rebutted Dr. Coons' testimony by
calling yet another forensic psychiatrist, Dr. Jay Douglas Crowder.
Dr. Crowder concluded that appellant had "immature personality
disorder," a substance-abuse disorder which was in remission due
to his confinement, and "bipolar mood disorder type I." According
to Dr. Crowder, appellant's mental illness was a contributing
factor in his commission of the offense. Dr. Crowder stated that
if appellant had been under treatment and receiving medication for
his illness at the time, he would not have committed the offense.
Dr. Crowder believed that appellant would not present a future
danger based on his age, his intelligence, the controlled
environment in prison, the fact that he was on mood-stabilizing
medication in prison, and the fact that the type of victim that
appellant had tended to harm would not be found in prison. On
cross-examination, Dr. Crowder stated that, when appellant killed
his children, he made a decision to do it and he knew the
wrongfulness of his actions.
A. Challenges to the Sufficiency of the
In point of error nine, appellant claims the
evidence is legally insufficient to prove beyond a reasonable
doubt that he would probably commit criminal acts of violence that
would constitute a continuing threat to society. Appellant argues
the evidence does not support such a finding because he would not
be eligible for parole until he is eighty-five years old, and
there is a very low likelihood that he would injure others in
prison. Appellant also claims that the State failed to show any
connection between the manner in which the crime was committed and
the propensity for appellant to be a danger in the future.
Appellant relies heavily upon his experts' opinion testimony that
he suffered from bipolar mood disorder, immature personality
disorder, and substance abuse disorder. According to these
witnesses, appellant's future conduct would not constitute a
threat in prison because his prior violent acts were crimes of
passion and were usually committed while he was in a delusional or
In reviewing the legal sufficiency of the
evidence on future dangerousness, we look at the evidence in the
light most favorable to the verdict to determine whether any
rational trier of fact could have believed beyond reasonable doubt
that the appellant would probably commit future criminal acts of
violence that would constitute a continuing threat to society.
(5) The circumstances of the offense alone, if
sufficiently cold-blooded or calculated, may support an
affirmative answer to the first special issue.
(6) Other evidence, such as a prior criminal record,
prior bad acts and uncharged conduct, psychiatric evidence, and
character evidence, also may support the finding.
The evidence is legally sufficient to support
the jury's affirmative finding on the first special issue. The
offense itself was particularly horrific, calculated, and cold-blooded.
The evidence supports a conclusion that appellant crippled each of
his daughters with gunshot wounds that severed their spines, and
then held the gun against their heads and shot them again. There
is evidence that appellant planned the killings in advance as an
act of revenge toward Ms. Pearl, and that he manipulated the
situation so that he could commit the murders as Ms. Pearl
listened helplessly on the phone. The jury's "future dangerousness"
finding is also supported by the evidence of appellant's
assaultive, abusive, and threatening conduct toward both of his
ex-wives over the years, as well as the assaults and threats
towards Ms. Gheddi's seven-year-old son. The testimony at trial
showed a pattern of increasingly violent conduct toward those who
angered or annoyed him. (8) Some of
the expert testimony also supports the affirmative finding. Dr.
Coons testified that, in his opinion, appellant committed the
offense as an act of revenge; he lacked a conscience that helped
him conform his conduct; and there was no guarantee that appellant
would continue to take his medication in prison. There is ample
evidence to support the jury's affirmative finding on the future
dangerousness issue. Point of error nine is overruled.
In his tenth point of error, appellant contends
the evidence is factually insufficient to support the jury's
finding that appellant would be a future danger. For the reasons
set out in McGinn v. State, (9)
we do not conduct a factual sufficiency review of this
special issue. (10) Point of error
ten is overruled.
B. Claims Relating to Jury Selection
In points of error one through seven, appellant
contends that his effective assistance of counsel and due process
rights were violated by the trial court's denial of his challenges
for cause against seven different venirepersons because each had
formed an opinion as to appellant's guilt that prevented them from
being impartial. A venireperson who has formed an opinion about
guilt or punishment based upon exposure to pretrial publicity is
not challengeable for cause if he states that: he can put that
opinion aside; it will not influence his verdict; and he will base
his verdict solely on the law and facts presented at trial.
(11) The sole question for determination is whether a
juror can put aside prior knowledge and opinion and render an
impartial verdict. (12)
We have reviewed the voir dire of each of the
seven complained-of venirepersons. While all seven stated that
they had formed an opinion about appellant's guilt based upon the
pretrial publicity, all seven unequivocally stated that they could
put those opinions aside and base a verdict solely on the law and
evidence presented at trial. Appellant also alleges, in point of
error five, that one particular venireperson, Steven Crimson, had
formed an opinion that appellant should receive the death penalty.
Despite having formed that opinion based upon publicity, Mr.
Crimson stated that he could put that opinion aside, be open-minded,
and listen to all of the evidence before making a decision about
the appropriate punishment.
Thus, all of the venirepersons at issue stated
that they could put aside their prior knowledge and opinion and
render an impartial verdict. (13)
The trial judge was in the best position to gauge the demeanor and
sincerity of these prospective jurors. For most of these
challenges, the trial judge made extensive findings, on the
record, summarizing the venireperson's answers and putting those
answers in context. Based upon this record, we conclude that the
trial judge did not abuse his discretion in denying appellant's
challenges for cause. Appellant's constitutional rights were not
violated by the trial court's rulings. (14)
Points of error one through seven are overruled.
In point of error eight, appellant claims that
the trial court violated his rights by granting the State's
challenge for cause which was made on the ground that venireperson
Eric Aemisegger had foreclosed the possibility of the State being
able to prove future dangerousness in a prison society. Although
appellant alleges that the error violated his rights under the
Sixth and Fourteenth Amendments, in Jones v. State,
(15) this Court held that "the constitutional right to
trial by an impartial jury is not violated by every error in the
selection of a jury." (16) Instead,
it is "[o]nly in very limited circumstances, when a juror is
erroneously excused because of general opposition to the death
penalty ("Witherspoon" error)," that "the exclusion of a
juror by an unintentional mistake amount[s] to a constitutional
violation." (17) Mr. Aemisegger
was not excused because of his opposition to the death penalty.
Thus, any error here was nonconstitutional.
Appellant does not allege that he was harmed,
but rather urges this Court to overrule Jones, which held
that the "erroneous excusing of a veniremember will call for
reversal only if the record shows that the error deprived the
defendant of a lawfully constituted jury."
(19) We decline to overrule Jones. Even
assuming that the trial court erred in granting the State's
challenge for cause to Mr. Aemisegger, appellant has made no
showing that the error deprived him of a lawfully constituted jury.
(20) Point of error eight is overruled.
C. Evidentiary Claims
In point of error eleven, appellant complains
of the admission of extraneous-act evidence at the guilt phase.
Specifically, he points to the following evidence as improperly
admitted: (1) evidence of appellant's December 1999 assault on Ms.
Pearl, for which he received probation; (2) evidence that
appellant was in possession of multiple firearms at the time of
the murders; (3) evidence that appellant violated Ms. Pearl's
protective order; and (4) evidence of other assaultive and abusive
behavior toward Ms. Pearl during the course of their marriage.
Appellant argues that this evidence did not tend to show his
motive to kill his children and was not relevant. Even if it were
relevant, appellant contends, its probative value was
substantially outweighed by its prejudicial effect.
Evidence of other crimes, wrongs, or acts is
generally inadmissible at the guilt phase, but Rule of Evidence
404(b) allows such evidence if it has relevance apart from
character conformity. (21) For
example, evidence of other crimes, wrongs, or acts may be
admissible to prove identity or intent, to establish motive, or to
show opportunity or preparation. (22)
The admissibility of evidence, including extraneous-act evidence
offered for a purpose other than character conformity under Rule
404(b), is within the trial court's discretion. As long as the
trial court's ruling was within the zone of reasonable
disagreement, the reviewing court should affirm.
(23) A trial court's decision to admit evidence, finding
that its probative value is not substantially outweighed by the
danger of unfair prejudice, is also given deference.
The trial court admitted the extraneous-acts
evidence to show motive. The State's theory of the case was that
appellant committed the murders as an act of vengeance against Ms.
Pearl, whose report to the police had led to a motion to revoke
appellant's probation. Evidence of one's motive to commit a crime
is always relevant under Rules 401 and 404(b).
(25) The motive evidence in this case was, in fact, not
particularly probative of a disputed issue because the
overwhelming evidence supported appellant's guilt. For the same
reason, however, admission of evidence showing appellant's motive
for committing the murders was not prejudicial on the issue of
guilt. The trial court's decision to allow the evidence was
clearly within the zone of reasonable disagreement. There was no
abuse of discretion. Point of error eleven is overruled.
In point of error twelve, appellant claims that
the trial court erred by admitting, at the guilt stage, evidence
obtained as a result of an illegal search and seizure, in
violation of the Fourth Amendment to the United States
Constitution. In his thirteenth point of error, appellant makes
the same claim under Article I, section 9, of the Texas
Constitution. Because appellant provides no separate argument or
authority for his state constitutional claim, we do not address it.
The trial court held a pretrial hearing on
appellant's motion to suppress. Dallas Police Officer Dane
Thornton testified that he was on duty and driving on Canton
Street on the evening of May 2, 2001, when a woman who was "quite
frantic" approached him. The woman, later identified as Ms. Pearl,
told Officer Thornton that she had been on the phone with her
children who were at her ex-husband's apartment when she heard
them holler, "No daddy, no," and she then heard five gunshots. Ms.
Pearl told Officer Thornton that they were standing in front of
her ex-husband's apartment building, and told him the apartment
number. Officer Thornton testified that, from what Ms. Pearl told
him, he believed a shooting "was still happening or had just
As Officer Thornton got out of his car, two
other officers, who had been dispatched to the scene, pulled up.
All three officers entered the building and went up to appellant's
apartment on the fourth floor. Officer Thornton took the elevator,
and the other two officers took the stairs. They knocked and
announced themselves, but got no response. Officer Thornton
testified that he went back downstairs to see if Ms. Pearl had a
key because the doors were the "commercial wooden" type which
would not kick in very easily. (27)
Ms. Pearl did not have a key, and there was no apartment manager
or maintenance personnel readily available to open the door. A
resident of the complex who was in the foyer told Officer Thornton
that he had not heard any shots or seen anyone leave the building.
Officer Thornton testified that he was downstairs looking for a
key for about a minute before he returned to appellant's apartment.
The officers decided to kick the door in
because they believed the shooting had just occurred, and they
were concerned that the girls might be injured. It took three
tries to force the door open. Once inside, the officers saw the
younger girl lying face down. She appeared to be injured or dead.
They found the older girl on the kitchen floor. She, too, appeared
to be injured or dead. The officers then did a sweep of the rest
of the apartment, including closets, to see if appellant was still
inside. The officers saw several guns in the closets. They also
saw a handgun on a night stand near the body of the younger girl
and another handgun on the kitchen counter near the body of the
older child. After determining that the girls were dead and
appellant was not inside the apartment, an officer was posted at
the door to secure the scene.
Dallas Police Officer Zane Murray testified
that he and his partner were dispatched to the scene based on a
report that a mother believed her children had been shot. When
Officer Murray and his partner arrived, they spoke briefly with
Officer Thornton, and then the three officers went to the
apartment. They did not speak with Ms. Pearl because their
immediate focus was on getting to the apartment where the girls
might have been shot. According to Officer Murray, when they
received no answer at the door, Officer Thornton went back
downstairs to verify that Ms. Pearl had heard gunshots on the
phone. In the meantime, Officer Murray radioed for a supervisor to
come to the scene. Officer Thornton returned and stated that Ms.
Pearl had definitely heard gunshots and believed that the girls
might be dead. At that point, believing that the girls might be
inside, possibly seriously injured but alive, the officers kicked
in the door. They saw the younger girl lying face down on the
floor with blood pouring from her head. She appeared dead. The
officers began a search of the apartment for appellant. After
determining that he was not there, they secured the apartment and
waited for the physical evidence team and others to arrive. A
search warrant was obtained about four hours later, but not before
the bodies were removed and photographs were taken.
The trial court found, in part, that the
warrantless entry was authorized under the emergency doctrine. The
court stated that "obtaining a warrant was impractical because the
officers reasonably believed there was immediate needs [sic] to
act in order to protect or preserve the life or prevent serious
bodily injury." Appellant's sole argument is that any evidence
seized from the scene before the warrant was obtained should have
been suppressed because the officers' initial entry was not
justified under the "emergency doctrine."
In reviewing a trial court's ruling on a motion
to suppress, we give "almost total deference to a trial court's
determination of historical facts" and review de novo its
application of the law. (28) Under
the emergency doctrine, an officer's warrantless entry into a home
does not violate the Fourth Amendment if the officer has a
reasonable belief that he must act immediately "to protect or
preserve life or avoid serious injury." (29)
In determining whether such a warrantless entry is justified, we
apply an objective standard of reasonableness which looks at the
officer's conduct and takes into account the fact and
circumstances known to the officer at the time of the entry.
(30) Courts use an objective standard of reasonableness
to assess the officers' belief that such an emergency existed.
Appellant contends that the officers did not
have probable cause because they acted solely on the report of a
hysterical woman whom they did not know. Appellant also argues
that the officers did not really believe there was an "immediate
need to act" or they would not have gone looking for a key instead
of making the forced entry immediately.
The record shows that the officers were told by
Ms. Pearl, who was extremely distressed, that she heard gunshots
while on the phone with her ex-husband and daughters and she
believed that the children had been shot. The officers knew that
Ms. Pearl had reported this to 911 and that she believed that it
had just occurred. Based upon Ms. Pearl's frantic demeanor, the
fact that she stated she heard gunshots while on the phone with
her daughters and heard her daughters yell, "No, daddy, no," and
that Ms. Pearl had reported the incident to 911, the officers'
belief that they needed to gain entry quickly in case the girls
were injured and needed medical attention was an objectively
reasonable one. They were concerned that the door would not easily
be forced in. Officer Thornton decided to see if there was a key,
and also wanted to verify that Ms. Pearl had definitely heard
shots while on the phone. He was downstairs and back in a couple
of minutes, and immediately upon his return, the officers forced
the door open. They had an objectively reasonable belief that
there was "an immediate need to act in order to protect or
preserve" the lives of the two girls. (32)
The evidence supports the trial court's ruling that the officers'
entry was justified under the emergency doctrine. Points of error
twelve and thirteen are overruled.
D. Challenges to the Texas Death
In his fourteenth point of error, appellant
claims that imposition of the death penalty on mentally ill
defendants violates the Eighth Amendment of the United States
Constitution. Appellant argues that mental illness impairs
understanding and functioning in ways that substantially reduce
personal culpability, that a sentence of death is grossly
disproportionate to the personal culpability of defendants
afflicted by mental illness, and that executing mentally ill
individuals serves no legitimate penal objective. He argues that
persons with mental illness, such as himself, do not have the same
capacity as others to appreciate the consequences of their actions
and they do not possess the requisite level of culpability to
warrant death. Given their diminished level of personal
culpability, he argues, execution does not fulfill the goal of
The execution of mentally retarded persons and
insane persons violates the Eighth Amendment.
(33) An insane person "has no comprehension of why he
has been singled out and stripped of his fundamental right to life."
(34) Thus, his execution would have no retributive value.
And the execution of an individual who has "no capacity to come to
grips with his own conscience or deity" offends humanity.
(35) Mentally retarded persons have diminished
culpability because of their many and varied impairments,
including "diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn
from experience, to engage in logical reasoning, to control
impulses, and to understand the reactions of others."
(36) The same reasons that make a mentally retarded
person less morally culpable also make it less likely that they
are able to conform their conduct based upon an understanding of
the associated penalty, thus failing to serve the penal policy of
Appellant does not contend that he was or is
insane or mentally retarded. (37)
Rather, he points to expert testimony at trial stating that his
mental illness, bipolar disorder, was a contributing factor in the
commission of the offense. He argues that his mental illness
caused his reasoning to be impaired, diminished his capacity to
evaluate the consequences of his actions, and rendered him unable
to conform his behavior to society's norms. But there is no
Supreme Court authority or authority from this Court suggesting
that mental illness which is a "contributing factor" in the
defendant's actions or that caused some impairment or some
diminished capacity is enough to render one immune from execution
under the Eighth Amendment. (38)
Certainly the issues concerning appellant's mental illness were
relevant to the question of mitigation and were properly presented
and argued at punishment. But this Court has previously rejected
an invitation to extend the federal constitutional proscription
against execution of the insane to the greater category of
mentally ill defendants, (39) and
we decline to do so today. Point of error fourteen is overruled.
In his fifteenth point of error, appellant
claims that the Texas death-penalty scheme violates due process
because the mitigation issue fails to require the State to prove
the absence of sufficient mitigating circumstances beyond a
reasonable doubt, contrary to Apprendi v. New Jersey.
(40) We have rejected identical claims.
(41) Point of error fifteen is overruled.
In point of error sixteen, appellant claims
that the Texas death-penalty scheme violates the Eighth and
Fourteenth Amendments to the United States Constitution by
requiring at least ten "no" votes for the jury to return a
negative answer to the punishment issues. We have rejected
identical claims. (42) Point of
error sixteen is overruled.
In point of error seventeen, appellant contends
that certain undefined and vague terms within the special
punishment issues render the scheme unconstitutional. Appellant
complains of the failure to define "probability," "criminal acts
of violence," "continuing threat to society," "society," "sufficient
mitigating circumstance or circumstances," "circumstances of the
offense," and "Defendant's character and background." Omission of
an instruction defining these terms does not render the issues
unconstitutional. Such terms can be understood by jurors without a
special instruction. (43) Point of
error seventeen is overruled.
In points of error eighteen and nineteen,
appellant claims the Texas death-penalty scheme violates the
United States and Texas Constitutions because "of the
impossibility of simultaneously restricting the jury's discretion
to impose the death penalty while also allowing the jury unlimited
discretion to consider all evidence mitigating against imposition
of the death penalty." We have repeatedly rejected identical
claims. (44) Points of error
eighteen and nineteen are overruled.
In points of error twenty and twenty-one
appellant contends his rights under the United States and Texas
constitutions were violated by the cumulative effect of the
constitutional errors he alleges in his brief. Appellant has
failed to show any constitutional errors. Points of error twenty
and twenty-one are overruled.
The judgment of the trial court is affirmed.
Delivered: May 18, 2005
Do Not Publish
1. Tex. Pen. Code §
2. Tex. Code Crim. Proc.
art. 37.071, § 2(b) & (e).
3. Id. art. 37.071,
4. Id. art. 37.071,
5. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979).
6. Hayes v. State,
85 S.W.3d 809, 814 (Tex. Crim. App. 2002).
8. Appellant argues that his
violence is triggered only by his relationships with women, but
evidence at trial showed that his physical violence had also been
triggered by his brother and by a stranger.
9. 961 S.W.2d 161, 169 (Tex.
Crim. App. 1998).
10. Manns v. State,
122 S.W.3d 171, 194 (Tex. Crim. App. 2003); Allen v. State,
108 S.W.3d 281, 285 (Tex. Crim. App. 2003), cert. denied,
540 U.S. 1185 (2004).
11. Cockrum v. State,
758 S.W.2d 577, 587-89 (Tex. Crim. App. 1988).
12. Id. at 589.
14. See Murphy v.
Florida, 421 U.S. 794, 799-800 (1975) (noting that qualified
jurors need not be totally ignorant of the facts and issued
involved in the case; "'[t]o hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an
impossible standard. It is sufficient if the juror can lay aside
his impression or opinion and render a verdict based on the
evidence presented in court'") (quoting Irvin v. Dowd,
366 U.S. 717, 723 (1961)).
15. 982 S.W.2d 386 (Tex.
Crim. App. 1998).
16. Id. at 391.
19. Id. at 394.
20. Feldman v. State,
71 S.W.3d 738, 749 (Tex. Crim. App. 2002).
21. Moses v. State,
105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
25. See Crane v. State,
786 S.W.2d 338, 349-50 (Tex. Crim. App. 1990) (stating that "the
prosecution may always offer evidence to show motive for the
commission of the offense because it is relevant as a circumstance
to prove the commission of the offense").
26. Tex. R. App. P. 38.1.
27. The apartment was
described as a loft in the Adams Hat Factory.
28. Guzman v. State,
955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).
29. See Laney v. State,
117 S.W.3d 854, 861-62 (Tex. Crim. App. 2003).
30. See id.
Because appellant's sole argument is that the initial entry was
not justified under the emergency doctrine, we do not address
whether the warrantless "search" of the apartment was "strictly
circumscribed by the exigencies which [justified] its initiation."
See id. at 862. In his brief, appellant states the
The trial court ruled that there were exigent
circumstances that brought "into play" the emergency doctrine and
that the officers had probable cause to search the residence. She
also found that obtaining a search warrant was impractical because
the officers reasonably believed there was an immediate need to
act to protect or preserve life or prevent serious bodily injury.
As a result of that finding, the court held that all evidence that
was in plain view during the "emergency search" "[i]ncluding, but
not limited to the bodies, the blood evidence, the hair fibers,
the handguns, the shells, the projectiles, the guns viewed in the
closet, and any other evidence within the area of plain view
during the emergency entry and sweep of the apartment" [was
32. See Laney, 117
S.W.3d at 861.
33. Atkins v. Virginia,
536 U.S. 304 (2002); Ford v. Wainwright, 477 U.S. 399
34. Ford, 477 U.S.
36. Atkins, 536
U.S. at 318.
37. At the time of the
murders, appellant was a financial officer for an oil company and
had a private CPA practice.
38. We also note that the
expert testimony in appellant's case does not support the breadth
of his claims. The experts all agreed that appellant knew what he
was doing at the time he committed the acts. While one expert did
testify that appellant was "not thinking about the consequences"
because his mania was in control at the time of the offense, she
did not state that appellant's condition precluded him
from being aware of the consequences. The main thrust of the
experts' testimony was that appellant's bipolar condition affected
his impulse control-his ability to conform his behavior. A lack of
impulse control, while recognized in Atkins as one of a
number of factors reducing the personal culpability of mentally
retarded individuals, has never been recognized as sufficient
alone to render one immune from execution under the Eighth
39. Colburn v. State,
966 S.W.2d 511 (Tex. Crim. App. 1998).
40. 530 U.S. 466 (2000).
41. Resendiz v. State,
112 S.W.3d 541, 550 (Tex. Crim. App. 2003), cert. denied,
124 S. Ct. 2098 (2004).
42. Resendiz, 112
S.W.3d at 548-49; Wright v. State, 28 S.W.3d 526, 537 (Tex.
Crim. App. 2000); Williams v. State, 937 S.W.2d 479, 490
43. See Feldman,
71 S.W.3d at 757; Ladd v. State, 3 S.W.3d 547, 572-73 (Tex.
Crim. App. 1999).
44. Escamilla v. State,
143 S.W.3d 814, 828 (Tex. Crim. App. 2004); Turner v. State,
87 S.W.3d 111, 118 (Tex. Crim. App. 2002)