IN THE COURT OF CRIMINAL APPEALS
GENE WILL, II Appellant
THE STATE OF
ON DIRECT APPEAL
FROM HARRIS COUNTY
delivered the opinion of the Court in which Keller, PJ,
Meyers, Womack, Keasler, and
Holcomb, JJ., joined.
Johnson and Cochran, JJ.,
concurred. Price, J.,
concurred to points of error one,
three, eight and seventeen but otherwise joined the opinion of
O P I N I O N
convicted appellant of capital murder. The trial court sentenced
appellant to death pursuant to the jury's answers to the special
issues submitted at the punishment phase. Appellant raises
seventeen points of error in an automatic direct appeal to this
Court. We affirm.
of error five, appellant claims that the evidence is legally
insufficient to support the jury's affirmative finding on the "future
dangerousness" special issue. This claim requires the Court to
view the evidence in the light most favorable to the jury's
finding and then determine whether any rational trier of fact
could have found beyond a reasonable doubt that there is a
probability that appellant would commit criminal acts of
violence that would constitute a continuing threat to society.
See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979);
Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App.
1991), cert. denied, 114 S.Ct. 101 (1993).
evidence shows that early on the morning of December 4, 2000,
the 22-year-old appellant shot and killed a uniformed law-enforcement
officer who was attempting to arrest appellant for burglarizing
a car. The slain officer's unfired gun was still in its holster
when his body was found.
officer sustained 10 gunshot wounds. Some were in the head, one
was in the neck, one was in the right chest near the underarm,
and one was on the right wrist. The evidence further indicates
that appellant fired the fatal shots after incapacitating the
officer with at least one nonfatal shot.
escape from the scene, appellant came upon a woman sitting in
her car. Appellant told her to get out, pointed a gun at her and
told her that he had shot a police officer. The woman got out
and appellant drove away in her car.
arrested appellant later that morning. Later that afternoon, the
police searched the apartment of appellant's girlfriend and
found numerous guns and stolen property.
also has convictions for evading arrest (a misdemeanor) and
unauthorized use of a vehicle (a state jail felony) for which he
received community supervision.
this community supervision, appellant committed an aggravated
robbery for which he was placed on deferred adjudication
community supervision. As a condition of community supervision
for this aggravated robbery, appellant was sent to boot camp for
three months, where efforts were made to rehabilitate him.
was not a disciplinary problem during his three months at boot
camp, and he "complete[d] fully the boot camp experience."
Appellant was still on deferred adjudication community
supervision for the aggravated robbery when he murdered the
police officer in this case. Appellant committed three "minor"
disciplinary rule violations (banging on a door, possession of
tobacco and threatening another inmate) while incarcerated in
the county jail awaiting trial for this capital offense.
presented some good character evidence. He also presented
evidence of his "minimal" involvement in the aggravated robbery
offense for which he was on probation when he committed this
capital offense. He presented evidence that a life sentence for
this capital offense "stacked" onto the sentence for his
aggravated robbery offense would insure that he would spend the
rest of his life in prison.
He also presented the testimony of a criminal-justice professor
who testified that murderers and older prisoners are not likely
to commit violence in a structured prison environment.
This testimony was based on the "internal workings [and policies]
of the Texas prison system" to keep the number of criminal acts
that occur within the prison system significantly low. It was
also based on "risk assessments or factors that may be
considered for determining whether or not someone would commit
acts of violence in the future." This testimony was also based
on a "number of different studies that have looked at what are
called actuarial predictions of offending behavior or recidivism
and /or offending behavior while in prison." On cross-examination,
the professor testified that these actuarial studies cannot
predict "the specific behavior of a particular person."
also presented the testimony of a psychiatric expert who
testified that appellant's criminal behavior and inability to
make right choices is not his fault because he had an unstable
family background which was a "blueprint for developing a
criminal." For example,
Q. We talk
often about making the right choices as we become adults and,
you know, some people think, despite whatever happened to you
when you're younger, you should be able to make good choices as
you get older and how does-if it does, I mean, how do these-this
type of environment, the environment he grew up in, how does
that affect, you know, his ability to make the right choices as
he gets older?
if he's exposed to these events and these influences that shape
his personality at an early age, he does not have the choices
that other people have because he doesn't see the world as other
people see it and he doesn't see the world as containing the
kinds of choices that most of us see.
the prosecution pointed out that appellant had been evaluated in
boot camp as a "limit tester." Appellant's psychiatric expert
agreed that such a person can be categorized as "manipulative,
bright, criminally oriented and greedy."
psychiatric expert also testified on cross-examination that "[l]eft
to his own devices, [appellant] cannot sustain himself in a
productive way" because he has no "internal moral compass." This
psychiatric expert also testified that appellant "scored very
high in the psychopathic deviate category" which describes a
person "who is more likely than any other group of people to
commit criminal acts" and who is "the least likely to change."
Q. No. I
want to know what it tells you about the defendant, the person.
it describes a person who typically does not obey the rules, who
has difficulty profiting from past experience, who has
difficulty forming long-term attachments and who is more likely
than any other group of people to commit criminal acts of-violating
the law, in other words.
when you evaluate a person and you determine that they're a
psychopathic deviate, that they score high in that area, what
that's telling you is that is a person who we often call-a
person who's unable to conform to society, correct?
* * * * *
* * * * * * * * * * * *
Q. And in
this case, once again, when we talk about a psychopathetic [sic]
deviate, okay, those, as a category, are the kind of people who
are the least likely to change.
A. Yes, I
would say that they're one of the hardest groups to change, yes.
Appellant argues that the issue is whether the evidence supports
a finding that he is "likely[
(2)] to commit
criminal acts of violence that would constitute a continuing
threat to other people in prison society" since the evidence
shows that a life-sentenced appellant would spend the rest of
his life in prison.
We have, however, consistently decided that "society" includes
prison society and free society such that the evidence is
sufficient if it supports a finding of "future dangerousness" as
to one or both.
Notwithstanding this, the evidence supports a finding that there
is a probability that appellant would be a future danger to free
and prison society. Among other things, the evidence shows that
appellant brutally and senselessly murdered a police officer
after efforts were made to rehabilitate appellant following his
commission of an aggravated robbery and that appellant is a "psychopathic
deviate," which describes a person "who is more likely than any
other group of people to commit criminal acts" and who is "least
likely to change." Point of error five is overruled.
of error one, appellant claims that the trial court erred in
allowing an excessive number of uniformed law-enforcement
officers "in the courtroom, close to the jury" during the trial.
After jury selection, but before the trial began, appellant
informed the trial court of his concerns that the presence of
uniformed officers in the courtroom during the trial might be of
an "intimidating nature" to the jury.
did not seek to have any officers excluded from attending the
trial. Instead, appellant asked the trial court to require any
officers attending the trial to wear non-uniform clothes "to
ensure their presence [did not] unduly interfere with the
juror's ability to be fair and impartial." The trial court
denied the motion.
renewed this motion twice during the two and one-half week trial.
Before opening statements, appellant caused the record to
reflect that there were 12 uniformed officers "sitting in that
part of the courtroom closest to the jury."
third day of trial, appellant caused the record to reflect that
there were "what appear[ed]" to be 18 uniformed officers in the
courtroom. Each time, the trial court denied the motion.
Appellant also referred to the presence of officers in the
courtroom during closing jury arguments.
how much all of us would like to bring [the slain officer] back,
a verdict of death won't do that.
Try as we
all might to reunite that good father with his best friend, his
wife, his confidante, we can't do that. Try as we might to put
an 8-year-old daughter and a 20-year-old daughter back with a
wonderful father, we won't be able to do that. Unfortunately we
can't heal the pain and loss and incomprehensible void that a
mother and father feel for the loss of a good man. And try as we
might, we look out here, we see all these officers and they're
all good officers. Try as we might, they've lost a good friend,
a confidante and one of theirs, we can't bring [the slain
concedes on appeal that he cannot show actual prejudice or that
the police uniforms actually influenced the jury. Rather,
appellant claims, as a matter of federal constitutional law,
that these uniforms were inherently prejudicial by creating an
unacceptable risk that impermissible factors came into play to
influence the jury. See Holbrook v. Flynn, 106 S.Ct.
1340, 1346-47 (1986); Howard v. State, 941 S.W.2d 102,
117-18 (Tex.Cr.App. 1996).
agree with this claim based on a record showing that appellant
objected to the officers' uniforms on only two occasions during
a two and one-half week trial consisting of 12 days of testimony.
Compare Howard, 941 S.W.2d at 118 (record was "too
scant to make a case for inherent prejudice"). Moreover, in
Holbrook, the Supreme Court held that supplementing the
customary courtroom security force "by four uniformed state
troopers sitting in the first row of the spectator's section"
did not deprive the defendant of his constitutional right to a
fair trial. See Holbrook, 106 S.Ct. at 1342, 1347.
Holbrook distinguished several cases that involved some
type of state action like shackling a defendant during trial
that branded the defendant in the jury's eyes "with an
unmistakable mark of guilt" or created "the impression in the
minds of the jury that the defendant [was] dangerous or
untrustworthy." See Holbrook, 106 S.Ct. at 1346-47.
Here, the presence of the uniformed officers in the courtroom
merely showed their solidarity and support for a fellow slain
case is distinguishable from appellant's cited case of Woods
v. Dugger because, among other things, there is no evidence
that any of appellant's jurors had close ties to law enforcement.
See Woods v. Dugger, 923 F.2d 1454 (11th
Cir. 1991) (presence in courtroom of spectator prison guards in
case where defendant was charged with murdering a prison guard
was inherently prejudicial in part because some of the jurors "had
either worked in the prison system or had relatives currently
working in the prison system"); Howard, 941 S.W.2d at
118 n.15 (also distinguishing Dugger). We decline to
hold that the mere presence of uniformed officers in the
courtroom created an atmosphere that "inherently lack[ed] due
process." See Howard, 941 S.W.2d at 118. Point of error
one is overruled.
of error two, appellant claims that the trial court should have
granted a mistrial "in response to prosecutorial argument
comparing appellant's offense to the terrorist acts of September
11, 2001." In point of error three, appellant claims that his
lawyer was ineffective for not objecting to prosecutorial
argument calling him "the embodiment of evil" and comparing him
The record from the punishment hearing reflects that the trial
court sustained appellant's objection to, and instructed the
jury to disregard, the prosecution's jury argument that many
people for the first time appreciate the value of the police
since the events of 9/11. The trial court, however, denied
appellant's motion for a mistrial because of this argument.
I want to digress a little bit and talk to you about something
larger than [appellant] because this is about his guilt and
about his punishment, but it has larger ramifications. Every one
of us experienced the tragedy of September 11th and
many people for the first time, for the first time appreciated
the value of our firefighters and our police-
Excuse me, Your Honor. I'm going to object to this as an
improper plea for law enforcement.
Ask that the jury be instructed to disregard.
Jury will disregard.
Respectfully move for a mistrial.
reflects that the prosecution then made the following argument
to which appellant did not object or otherwise complain.
Well, it doesn't go to that, Mr. Cunningham, because it goes to
the fact that what really we learned from September 11th
is that evil exists in this world. If we didn't know it before,
we know it now. And we know the embodiment of evil came out and
has manifested itself in [appellant].
Appellant's failure to complain about this argument at trial
forfeited any appellate claim that the argument was improper.
See Cockrell v. State, 933 S.W.2d 73, 88-89 (Tex.Cr.App.
1996), cert. denied, 117 S.Ct. 1442 (1997). Appellant
nevertheless claims that his lawyer was ineffective for not
objecting to the argument because this "outrageous, ludicrous
argument should have drawn an objection, but did not."
held several times in cases where an ineffective assistance of
counsel claim is raised for the first time on direct appeal that
"the record on direct appeal is simply undeveloped and cannot
adequately reflect the failings of trial counsel." See, e.g.,
Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Cr.App. 1999);
see also Massaro v. United States, 123 S.Ct. 1690, 1694
(2003) (when ineffective assistance of counsel claim is raised
for first time on direct appeal, "appellate counsel and the
court must proceed on a trial record not developed precisely for
the object of litigating or preserving the claim and thus often
incomplete or inadequate for this purpose").
in this case is insufficient to support a conclusion that
appellant's lawyer was ineffective for not objecting to the
prosecution's closing jury argument. See Thompson, 9
S.W.3d at 815.
event, we do not agree with appellant's characterization of the
argument as inviting the jury to "use [appellant] as a scapegoat
for the most horrible act of terrorism in modern times" and as
suggesting to the jury that appellant was somehow tied to the
events of 9/11.
in their totality, these arguments emphasized the value of
police officers and suggested that killing a police officer in
the lawful discharge of his duties by senselessly shooting him
numerous times is the embodiment of evil. This was a proper
summation of, and reasonable deduction from, the evidence.
See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Cr.App.
2000), cert. denied, 121 S.Ct. 1407 (2001) (summation of, and
reasonable deductions from, the evidence are proper areas of
addition, any error in the argument was harmless under state law
because, at most, it "had but a slight effect" on the jury.
See Solomon v. State, 49 S.W.3d 356, 365 (Tex.Cr.App.
2001). And, as a matter of federal constitutional law, we are
unable to conclude that an objection to the argument by
appellant's lawyer would have changed the result of the
sentencing proceeding. See Williams v. Taylor, 120 S.Ct.
1495, 1511-12 (2000) (defendant claiming ineffective assistance
of counsel must show that "but for counsel's unprofessional
errors, the result of the proceeding would have been different").
Points of error two and three are overruled.
of error four, appellant claims that his lawyer was ineffective
for not objecting to the following prosecution jury argument at
the punishment hearing.
defense tells you, you know, this is just about [appellant] and
he can serve out his life in prison. But think about something.
Let's think about the effect that your sentence is going to have
on the people that [appellant] runs with, the Rosarios, the
Greenlees, these other folks. How tempting is it to them to take
a gun with them if they think they might be confronted by the
people who will argue to you that the death penalty is not a
deterrent, but you know when you really think about it in one
way, the death penalty is the reason we erect lighthouses on
rocky, dangerous coasts. Yeah, you're going to hear about the
shipwrecks. You're going to hear about the Robert Gene Wills.
You're not going to hear about the people who heeded the
searchlight and made it to harbor safely. The - there's no
deterrent effect. You can't predict a negative event.
record is insufficient to support a conclusion that appellant's
lawyer was ineffective for not objecting to this argument.
See Thompson, 9 S.W.3d at 815. Point of error four is
of error six, appellant claims that the failure to define "society"
in the future-dangerousness special issue "resulted in a
sentence of death in violation of appellant's rights under the
Eighth and Fourteenth Amendments." We have resolved this claim
adversely to appellant. See Ladd v. State, 3 S.W.3d
547, 572-73 (Tex.Cr.App. 1999), cert. denied, 120 S.Ct. 1680
(2000). Point of error six is overruled.
of error seven, appellant claims that the trial court committed
constitutional error in refusing his requested instruction "telling
the jurors that the burden of proof on the [future dangerousness]
special issue incorporated the same burden of proof on
extraneous offenses, that they had to find beyond a reasonable
doubt that appellant had committed any extraneous offense before
they could consider it in answering
issue" (emphasis in original). We have resolved this claim
adversely to appellant. See Ladd, 3 S.W.3d at 574-75
(as long as punishment charge requires state to prove special
issues, other than the mitigation issue, beyond a reasonable
doubt, there is no unfairness in not having a burden of proof
instruction concerning extraneous offenses).
however, claims that, under the Supreme Court's decision in
Ring v. Arizona, 122 S.Ct. 2428 (2000), jurors must be
instructed that the prosecution has the burden to prove
extraneous offenses beyond a reasonable doubt. In Apprendi
v. New Jersey, the Supreme Court held, "[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."
See Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000).
In Ring, the Supreme Court decided that Apprendi
also required a holding that a jury (not a judge sitting without
a jury) must find any aggravating circumstances necessary for
imposition of the death penalty. See Ring, 122 S.Ct. at
case, the jury was instructed that the prosecution had the
burden to prove the future-dangerousness special issue beyond a
reasonable doubt, and the jury was also required to make the
critical finding on that issue. This satisfies the requirements
of Apprendi and Ring. See also Jackson v.
State, 992 S.W.2d 469, 477 (Tex.Cr.App. 1999) (in capital
cases where jury is statutorily charged that prosecution must
prove future-dangerousness issue beyond a reasonable doubt, no
burden of proof instruction concerning extraneous offenses is
required). Point of error seven is overruled.
of error eight, appellant claims that the future-dangerousness
special issue was unconstitutionally applied to him "because
that issue was not susceptible to proof beyond a reasonable
doubt and the jury could not apply the rule for decision (beyond
a reasonable doubt) in the context of the punishment question."
We understand appellant to argue that the possibility that a
life-sentenced appellant might escape or make parole "has the
inevitable effect of reducing the prosecution's burden of proof
[on the future-dangerousness special issue] to virtually zero."
argues that the "jurors will interpret a reasonable doubt to
mean any tiny degree of doubt, because they are not willing to
risk, at whatever time, of the Defendant's release." (Emphasis
in original). In support of this claim, appellant relies on
double hearsay-his investigator's affidavit (also discussed in
point of error seventeen) containing the investigator's out-of-court
statements relating juror Martinez' out-of-court statements that
"in considering the [future-dangerousness] special issue, the
jurors considered the possibility that [appellant] might escape"
and "the jurors were pretty sure, from defense counsel's
arguments, that [appellant] would probably never be released
case, the jury was instructed that a life-sentenced appellant
would not be eligible for parole for 40 years and that "eligibility
for parole does not guarantee that parole will be granted."
further reflects that any mention of the possibility of escape
first arose during the prosecution's cross-examination of
appellant's criminal-justice expert without any objection from
appellant. The prosecution asked the professor whether his
statistical data included "the Texas 7" which refers to 7
non-capital prison inmates who had escaped from the Texas prison
system and went on a crime spree that included the murder of a
Dallas police officer.
your studies began after that?
data were collected after that time frame, yes.
Q. I guess
before the escape of the Texas 7?
professor testified on redirect examination about changes that
have taken place in the prison system in response to the escape
of the Texas 7.
changes have taken place?
prison system has increased its security and its concern around
escapes, which was what the Texas 7 was about, and if I can-the
institutional misconduct of the Texas 7 is included in the data
that we're talking about. What they did when they escaped is not.
The data we looked at doesn't look at what happens when somebody
gets out. So, the conduct of those people while they were
incarcerated does fall within the range of the data we have.
7 were again mentioned during the prosecution's recross-examination
of the professor.
Dr. Longmire, I guess, based on your testimony, you would have
been able to tell, I guess the public, the jury that the Texas 7
wouldn't have done what they did when they got out, based on
I object, Your Honor. I never asked him to predict as to this
individual or any other inmate.
Well, Dr. Longmire, you just stated that you included in this
I renew my objection, Your Honor.
Let her finish her question.
-in this institutional study all the behavior of the Texas 7,
A. To the
extent that any of them were incarcerated for murder, yes.
Well, I - hold on, hold on. I'm going to object because they
weren't in even for murder, Your Honor. Not all - she's
categorizing seven people. If she wants to go through them
individually and ask him what applied to his study, this would
be different; but they weren't all in for that offense. One was
a sexual assault.
All right. Counsel, why don't you finish asking your question.
finish asking her question and then I'll rule.
Dr. Longmire, you're the one who just brought up the fact that
members of the Texas 7 were included in this study, correct?
who were convicted of murder would have been included in this
I'm assuming based on your familiarity -
I'm going to use her objection to relevancy because we haven't
been able to go into what the studies show.
Well, based on your studies, you were prepared then, I assume,
to say that -
Object to relevance as to, in their case, Your Honor, how it
would apply to this defendant.
party mentioned the possibility of escape during closing jury
arguments. The prosecution did not dispute appellant's assertion
during his closing jury arguments that a life-sentenced
appellant would die in prison.
No matter what your verdict is, [appellant] will be punished and
punished severely. A life sentence is not a slap on the wrist.
No matter what your verdict is here, it ensures that [appellant]
will die in prison. It really only decides when he dies and how
he dies, whether he dies of natural causes or dies as a result
of an execution.
initially note that the trial court had no opportunity to remove
the basis of the objections raised in appellant's claims on
appeal because appellant did not raise these objections in the
trial court. See Posey v. State, 966 S.W.2d 57, 62 (Tex.Cr.App.
1998). Appellant has, therefore, procedurally defaulted these
appellate claims. See id.
addition, the merits of these claims should be considered in the
context of the history of the legislative mandate requiring the
submission of the parole-law jury instruction. Before our
Legislature required this instruction, this Court had
consistently held, based on the Texas Constitution, that jurors
should not be informed "of the actual consequences of a life
sentence," such as the "possibility of commutation, pardon, or
parole." See generally Smith v. State, 898 S.W.2d 838,
846-53, 849 (Tex.Cr.App. 1995) and at 857-72 (Clinton, J.,
dissenting), cert. denied, 116 S.Ct. 131 (1995).
rationales were advanced in support of this. For example, some
believed that injecting parole and other similar considerations
(such as the possibility of escape) into the capital sentencing
process would distract the jury from its main function of making
an individualized sentencing determination and would turn this
process, as demonstrated by this case, into "mini-trials on
prison space and parole policies." See Smith, 898 S.W.2d
at 849 n.16.
About the time that the minimum years for parole eligibility on
a life sentence were greatly increased, some believed that it
was unfair not to tell a jury that a life-sentenced capital
defendant would serve many years in prison before becoming
eligible for parole. See Smith, 898 S.W.2d at 857-72 (Clinton,
J., dissenting) (explaining how minimum parole eligibility could
be considered relevant mitigating evidence).
The United States Supreme Court also called the
constitutionality of the Texas practice into question with its
decision in Simmons v. South Carolina, which held that
the particular defendant in that case was constitutionally
entitled to inform his sentencing jury that a life sentence
carried no possibility of parole, especially in light of the
prosecution's argument that that defendant might get out of
prison if sentenced to life. See Simmons v. South Carolina,
114 S.Ct. 2187 (1994); Smith, 898 S.W.2d at 848-53 (distinguishing
against this backdrop that our Legislature changed the law to
mandate the current jury instruction that a life-sentenced
capital defendant will serve 40 years in prison before becoming
eligible for parole. See Article 37.071, Section
legislatively mandated parole jury instruction, coupled with
appellant putting into issue various prison policies and "actual
consequences of a life sentence," make such things as the
possibility of escape a relevant consideration to the future-dangerousness
special issue. See Smith, 898 S.W.2d at 849 n.16 and at
857-52 (Clinton, J., dissenting); cf. California v. Ramos,
103 S.Ct. 3446, 3453-58 (1983) (does not violate federal
constitution to submit capital sentencing jury instruction
speculating about possible future gubernatorial commutation of
life sentence without possibility of parole because this was
relevant to "future dangerousness" and was not too speculative
an element for the jury's consideration). Under these
circumstances, we decline to hold that these valid and relevant
considerations have "the inevitable effect of reducing the
prosecution's burden of proof [on the future-dangerousness
special issue] to virtually zero." Point of error eight is
of error nine, appellant claims that, because this Court has
held that "victim impact" evidence is admissible to "rebut"
mitigation, omitting a burden of proof in the mitigation special
issue is unconstitutional, especially in light of the Supreme
Court's decisions in Apprendi and Ring. We
have decided this claim adversely to appellant. See Blue v.
State, 125 S.W.3d 491, 500-01 (Tex.Cr.App. 2003);
Resendiz v. State, 112 S.W.3d 541, 549-50 (Tex.Cr.App.
2003); Allen v. State, 108 S.W.3d 281, 285 (Tex.Cr.App.
2003); Prystash v. State, 3 S.W.3d 522, 535-36 (Tex.Cr.App.
1999), cert. denied, 120 S.Ct. 1840 (2000). Point of error nine
of error ten, appellant claims that the mitigation special issue
is unconstitutional because "it makes impossible any meaningful
appellate review of the jury's determination." In point of error
eleven, appellant claims that Article 44.251, of the Texas Code
of Criminal Procedure, requires that the jury's answer to the
mitigation special issue be subject to appellate review. We have
rejected these claims. See Prystash, 3 S.W.3d at 536;
Cockrell v. State, 933 S.W.2d 73, 92 (Tex.Cr.App.
1996), cert. denied, 117 S.Ct. 1442 (1997). Points of error ten
and eleven are overruled.
of error twelve, appellant claims that the submission of the "anti-sympathy"
jury instruction at the punishment phase of his trial violated
the federal constitution. We have decided this claim adversely
to appellant. See Tong v. State, 25 S.W.3d 707, 710-11
(Tex.Cr.App. 2000), cert. denied, 121 S.Ct. 2196 (2001). Point
of error twelve is overruled.
of error thirteen, appellant claims that the trial court
violated various federal constitutional provisions by denying
his request for a limiting instruction regarding the proper use
of "victim impact/character evidence."
reflects that the prosecution's last witness during its
punishment case was the victim's widow, who testified briefly
about the impact of his death on the family. This testimony
covers about 14 pages in the reporter's record. Appellant
briefly alluded to this evidence during his closing jury
arguments (see discussion of point of error one). The
prosecution did not mention it at all during its closing jury
also reflects that, at the close of the punishment evidence, the
trial court overruled the following objections that appellant
made to the court's jury charge:
defendant objects to the Court's failure to instruct the jury
that victim character or impact evidence does not meet or
relieve the State of its burden to prove the continuing threat
issue beyond a reasonable doubt.
defendant objects to the Court's failure to instruct the jury
that jurors are not to use the victim evidence to make any
comparative worth analysis: victim's worth to the community, or
to his family, as compared to other members of society, or
victim's worth compared to worth of the defendant.
defendant objects to the Court's failure to instruct the jury to
disregard victim impact evidence that was not shown to be within
the knowledge or reasonable expectation of the defendant.
assume that these objections sufficiently raise the
constitutional claims appellant presents now. However, appellant
was not entitled to the first instruction because the jury was
instructed that the prosecution had to prove the future-dangerousness
special issue beyond a reasonable doubt. He was not entitled to
the second instruction because it is not constitutionally
impermissible to "compare the worth of a victim to a defendant's
worth" or to compare the victim's worth to the community, to his
family, or to other members of society. See Jackson v. State,
33 S.W.3d 828, 834 (Tex.Cr.App. 2000), cert. denied, 121 S.Ct.
2221 (2001). And, he was not entitled to the third instruction
because it "is difficult to imagine how appellant could not have
reasonably foreseen the impact that the [victim's] death would
have on others." See Jackson, 33 S.W.3d at 833. Point
of error thirteen is overruled.
of error fourteen, appellant claims that the trial court erred
in denying his request to clarify the scope of the statutory
mitigation special issue because this special issue
unconstitutionally narrowed the consideration of mitigating
evidence to only those facts that reduced appellant's moral
blameworthiness. We have held that the mitigation special issue
does not do this. See Prystash, 3 S.W.3d at 534-35;
Shannon v. State, 942 S.W.2d 591, 597 (Tex.Cr.App. 1996).
In addition, our statutory mitigation special issue is taken
almost verbatim from the United States Supreme Court's decision
in Penry v. Lynaugh, 109 S.Ct. 2934, 2947, 2951-52
(1989). We decline to hold that such an instruction is
unconstitutional. Point of error fourteen is overruled.
of error fifteen, appellant claims that the "12-10 Rule" is
unconstitutional. In point of error sixteen, appellant claims
that the trial court erred in denying appellant's request to
inform the jury that the failure to answer a special issue would
result in a life sentence. We have resolved these and similar
claims adversely to appellant. See Prystash, 3 S.W.3d
at 536-37. Points of error fifteen and sixteen are overruled.
In point of error seventeen, appellant claims that the trial
court reversibly erred "in denying admission of juror Martinez'
testimony on motion for new trial" under Tex.R.Evid. 606(b)
which codifies the general rule that a juror cannot impeach her
general rule is a choice between the lesser of two evils:
The rule [that
a juror cannot impeach her own verdict] is based upon
controlling considerations of a public policy which in these
cases chooses the lesser of two evils. When the affidavit of a
juror, as to the misconduct of himself or the other members of
the jury, is made the basis of a motion for a new trial, the
court must choose between redressing the injury of the private
litigant and inflicting the public injury which would result if
jurors were permitted to testify as to what happened in the jury
conflicting considerations are illustrated in the present case.
If the facts were as stated in the affidavit, the jury adopted
an arbitrary and unjust method in arriving at their verdict, and
the defendant ought to have had relief, if the facts could have
been proved by witnesses who were competent to testify in a
proceeding to set aside the verdict. But let it once be
established that verdicts solemnly made and publicly returned
into court can be attacked and set aside on the testimony of
those who took part in their publication and all verdicts could
be, and many would be, followed by an inquiry in the hope of
discovering something which might invalidate the finding.
would be harassed and beset by the defeated party in an effort
to secure from them evidence of facts which might establish
misconduct sufficient to set aside a verdict. If evidence thus
secured could be used, the result would be to make what was
intended to be a private investigation, the constant subject of
public investigation; to the destruction of all frankness and
freedom of discussion and conference.
State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 202 n.12
(2003) quoting McDonald v. Pless, 35 S.Ct. 783, 784
reflects that appellant filed a motion for new trial in which he
claimed that the instructions at the punishment phase "misdirected
the jury" in various ways. Appellant attached to his new trial
motion the double hearsay investigator's affidavit referred to
in our discussion of point of error eight.
to the investigator, juror Martinez stated: (1) that she would
have sentenced appellant to life had there "been no special
issues to answer, but just a decision to make: life or death,"
(2) that, in answering the "future dangerousness" special issue,
the jurors considered the possibility that appellant might
escape, (3) that the jury ultimately rejected various factors as
mitigating because "the jurors could not accept them as an
excuse for the crime," and (4) that she wished "that the
legislature had put the special issues in reverse order, so that
the jurors would not have to decide whether to give a life
sentence to someone for whom they had just returned a death
answer (on the continuing-threat issue)."
motion for new trial hearing, the prosecution objected to the
admission of the investigator's affidavit on hearsay grounds and
on the basis that Rule 606(b) excluded it. The trial court
sustained the objection based on Rule 606. We do not reach the
Rule 606(b) issue because the trial court could have excluded
the affidavit on hearsay grounds. See Romero v. State,
800 S.W.23d 539, 543-44 (Tex.Cr.App. 1990) (appellate court may
uphold trial court's evidentiary ruling if the record supports
it and it is correct on any theory of law applicable to the case
even if the trial court gives the wrong reason for its ruling).
Point of error seventeen is overruled.
the judgment of the trial court.
April 21, 2004
Do Not Publish
1. The record reflects
that the trial court excluded on relevancy grounds the following
testimony contained in appellant's bill of exceptions:
Okay. We have Dr. Dennis Longmire on the
stand. We were asking him about the Sorenson - and that's
S-O-R-E-N-S-O-N - Pilgrim - Pilgram, Pilgram - P-I-L-G-R-A-M -
study and this is a study that he's been involved with where
they had followed 6,390 individuals incarcerated in the Texas
penal system for the offense of murder. I believe they studied
them for a ten-year period of time for a collective total of
29,074 and a half years served. That based on their findings as
a result of following this class of offender, no guards - I'm
sorry. There were no homicides involving guards within the
prison system; however, seven homicides did occur. There were 33
aggravated assaults committed by these offenders, which was the
equivalent of a half of 1 percent. The total rate of violence of
any kind was limited to 2 per hundred inmates. So, 98 out of
each 100 inmates serving terms for murder had not committed acts
of violence while incarcerated. I think this data shows that if
the defendant were to operate within the norm, it would
certainly be more likely than not that he would - I should say
be more likely that he would not commit criminal acts of
violence while in prison.
2. This actually misstates
the inquiry of the "future dangerousness" special issue. It does
not ask whether a defendant is "likely" to be a future danger.
It asks whether there is a "probability" that a defendant will
be a future danger.
3. See Hall v. State,
67 S.W.3d 870, 874 (Tex.Cr.App.), cert. granted, judgment
vacated, and case remanded to this Court for further
consideration [in light of Atkins v. Virginia, 122 S.Ct.
2242 (2002)], Hall v. Texas, 123 S.Ct. 70 (2002).
4. We do not understand
appellant to be complaining on appeal about this ruling.
5. For example,
appellant's lawyer claimed at the hearing on his motion for new
And those ["future dangerousness" and
mitigation special] issues came into being at different times.
It's not as if the legislature drafted those two issues together.
So, it's really probably another case of the defense just making
some more bad law, that we fought for years to be able to tell
the jury that defendants would be required to serve 40 years-35
and then 40 years and so now we're caught in a paradoxical
position, too, just as the State is, that we're asking these
people to find-of course we'll always hope they'll do what they
did in the Yates case, that they'll find that someone is a not
continuing threat but if they do find yes on that, then we're
placed in a hard position, too, of saying even though you found
that, you still need to find that because of mitigation that
this person should live, you know, instead of dying.
6. Rule 606(b) states:
inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during
the jury's deliberations, or to the effect of anything on any
juror's mind or emotions or mental processes, as influencing any
juror's assent to or dissent from the verdict or indictment. Nor
may a juror's affidavit or any statement by a juror concerning
any matter about which the juror would be precluded from
testifying be admitted in evidence for any of these purposes.
However, a juror may testify: (1) whether any outside influence
was improperly brought to bear upon any juror; or (2) to rebut a
claim that the juror was not qualified to serve.
Robert Gene Will