Basso, Suzanne Margaret:
White; age 44 at crime (DOB: 5-15-1954); murder of white male (her
boyfriend) age 59 in Houston on 8-25-1998; sentenced on 9-1-1999.
On 08/26/1998, Basso
and co-defendants kidnapped a 59-year old retarded white male and
intentionally caused his death by beating him with belts, baseball
bats, steel-toed boots, hands, and feet. Basso was the leader of the
group and encouraged all the co-defendants to abuse the victim.
The murder was
committed for proceeds from an insurance policy on the victim (in
which Basso was named the beneficiary) as well as other assets in
which Basso was named heir.
Basso had wooed the
victim into leaving his family and friends in New Jersey and moving to
Texas, under the guise that she would marry him. The victim was found
in a ditch with injuries so horrendous that the body was
- O'Malley, James
- Ahrens, Greg
- Ahrens, Bernice
- Ahrens, Hope
- Singleton, Terrance
Appeals run out for Harris County woman on death
DA to seek execution date for Suzanne Basso over
By Mike Tolson - The Houston Chronicle
October 4, 2010
Suzanne Basso, an odd woman with a wild imagination and a murderous
streak, moved a step closer to a date with the executioner Monday when
the U.S. Supreme Court declined to hear her appeal.
The high court refused without comment to review the Harris County
case. In January, the 5th U.S. Circuit of Appeals rejected her appeal,
which centered on claims that she was dealing with the effects of
psychiatric medicine during her trial, that her attorney had not put
on an expert to discuss her background during the punishment phase and
that the jury was not properly instructed.
Basso, 56, was convicted in the 1998 murder of Louis "Buddy" Musso, a
mentally challenged man from New Jersey who resided with her and her
son in a small rental home in Jacinto City.
Authorities said his death from blunt force trauma to the head
followed a long period of torture that included myriad beatings and
being burned with cigarettes. His body was dumped in Galena Park,
where it later was found by a jogger.
Basso was one of six people charged in the death of Musso, who was
said to have the mind of a child and had been lured to Texas
apparently by her promise to marry him. Instead, he lived in squalid
conditions and was beaten and kicked repeatedly by the group, which
included Basso's son, a friend of hers and that friend's children.
Basso's motive for bringing Musso to her home was alleged to be
financial. She had applied to be the payee for Musso's Social Security
disability checks and had taken out life insurance policies on him.
She also was the beneficiary of a purported will left by Musso.
Basso had concocted a colorful personal history in which she claimed
to be the heir to a Nova Scotia oil fortune. She was obsessed with all
things Irish even though she had no Irish ancestry. She had a violent
temper, had been accused of sexually abusing her son, was known for
inviting homeless men or those down on their luck to come live with
her, and was suspected of having something to do with the death of
husband Carmine Joseph Basso, who owned a security company.
The Supreme Court's rebuff of her appeal frees Harris County
prosecutors to go to court and get an execution date.
In the Court of Criminal Appeals of Texas
Susan (a.k.a. Suzanne) Margaret Basso, Apellant
The State of Texas
Appeal from Harris County
delivered the opinion for a unanimous Court.
The appellant was convicted on August 27, 1999 of
capital murder. Tex. Penal Code sec.19.03(a). R Pursuant to the jury's
answers to the special issues set forth in Code of Criminal Procedure
article 37.071 sections 2(b) and 2(e), the trial judge sentenced the
appellant to death. Art. 37.071 sec. 2(g). (1)
Direct appeal to this Court is automatic. Art. 37.071, sec. 2(h). The
appellant raises twenty-five points of error including challenges to
the sufficiency of the evidence at the punishment phase. We shall
In July of 1997, 59-year-old Louis "Buddy" Musso,
the victim in this case, first met either the appellant or her son,
James "J.D." O'Malley, at a church carnival in New Jersey. Musso,
though mentally retarded, lived independently, held a job at a local
grocery store, and handled his own financial affairs. In June of 1998,
Musso left New Jersey to live with the appellant in Jacinto City,
Texas. Shortly after Musso moved in with the appellant, Al Becker,
Musso's Social Security representative payee and friend of twenty
years, began having difficulty contacting Musso. Becker had numerous
telephone conversations with the appellant, but the appellant
eventually refused to allow him to communicate directly with Musso.
Concerned about Musso's welfare, Becker sought assistance from various
Texas state agencies, but was not able to gain any further information
about Musso's situation.
In July of 1998, the appellant unsuccessfully
attempted to designate herself as Musso's representative payee of his
Social Security benefits. On an application for a life insurance
policy on Musso, the appellant was named beneficiary, and she had
described herself as Musso's "wife to be." After Musso's death, police
found certificates of insurance for policies in Musso's name,
including one that provided $65,000 in the event of Musso's death from
violent crime. They also discovered a document entitled Musso's "Last
Will and Testament," which purported to leave Musso's entire estate to
the appellant while "no one else [was] to get a cent."
In the days leading up to his death, Musso suffered
tremendous abuse at the hands of the appellant and her five
co-defendants. The appellant would take Musso to the apartment of
co-defendants Bernice Ahrens, Craig and Hope Ahrens (Bernice's son and
daughter), and Terence Singleton (Hope's fiancé), where Musso was
forced to remain seated or in a kneeling position on a plastic mat in
the hallway for hours. Whenever Musso attempted to get off the mat,
O'Malley would beat or kick him. O'Malley, Singleton, Bernice, and
Craig beat Musso, and O'Malley, while wearing combat boots, kicked him
repeatedly. The appellant beat Musso with a baseball bat on the
buttocks, back, and groin area, and both she and Hope struck him with
a belt and buckle. After hearing that Musso had been "misbehaving"
while she was away from the apartment, the appellant, who weighed over
300 pounds, repeatedly jumped on top of Musso while he was on his
hands and knees, causing him to fall flat on the ground. At one point,
Musso requested that someone there call an ambulance. Even though
Hope, as she later admitted, recognized the extent of Musso's
injuries, he received no medical attention. Someone (the evidence
suggests either O'Malley or Singleton and Craig) bathed Musso in a
solution of bleach and Pine-Sol cleaning fluid, using a wire brush on
his body. Apparently, his killers were giving Musso this kind of
"bath" when he died.
On the morning of August 28, 1999, Musso's body was
found dumped near a roadway in Galena Park. Because Musso's clothes
lacked any blood stains, and his only shoe was on the wrong foot,
investigators believed that his body had been dressed after he died.
The medical examiner reported an extraordinary number of injuries to
Musso's body and was unable to count the "hundreds" of bruises that
covered Musso from head to toe. The palms of Musso's hands and the
soles of his feet were bruised, while his back and buttocks showed
numerous lash marks indicative of his having been whipped. Musso's
severely blackened eyes resulted from a "hinge fracture" to his skull,
which probably was caused by a blow to the back of the head. He had
sustained broken bones in his nose, ribs, and throat. Marks on his
back appeared to be cigarette burns, but may have been caused by a hot
poker, and the medical examiner noted areas of skin abrasion possibly
attributable to contact with a cleaning solution or scrub brush. The
cause of death was believed to have been a skull fracture from an
unknown object, which left a large, X-shaped laceration in Musso's
On the evening before Musso's body was discovered,
the appellant began what evolved into a lengthy attempt to establish
that Musso had run away. She made several phone calls to people,
including Becker, a niece of Musso's, and the local police, expressing
concern about Musso's whereabouts. The appellant claimed that Musso
probably had run away with a "little Mexican lady" that he had met at
a laundromat and said that she was "getting kind of worried" about
him. In a written statement to police, the appellant later confessed
to having driven Bernice Ahrens's car, with Musso's body in the trunk,
to the site where O'Malley, Singleton, and Craig Ahrens dumped the
body. She also admitted driving the car to the dumpster where the
others disposed of additional incriminating evidence, including bloody
clothes and rubber gloves, which the police had found as a result of
Sufficiency of the Evidence - Future
In points of error twenty-three and twenty-four,
the appellant claims that the evidence is legally and factually
insufficient to support a sentence of death. Specifically, the
appellant argues that the evidence precludes an affirmative answer to
the special punishment issue regarding her "future dangerousness."
See Tex. Code Crim. Proc. 37.071 sec. (b)(1)(requiring that a
jury determine "whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society").
In reviewing the legal sufficiency of the evidence
for punishment issues, this Court examines "the evidence in the light
most favorable to the verdict in order to determine whether any
rational trier of fact could have affirmatively answered the
punishment issue beyond a reasonable doubt." Dinkins v. State,
894 S.W.2d 330, 357-58 (Tex. Cr. App. 1994). We previously have set
forth a non-exclusive set of factors relevant to a review of the legal
sufficiency of the evidence to support an affirmative answer to the
future dangerousness issue. See Keeton v. State, 724 S.W.2d
58 (Tex. Cr. App. 1987). (2)
Notwithstanding consideration of the Keeton
factors, "the circumstances of the offense 'can be among the most
revealing evidence of future dangerousness and alone may be sufficient
to support an affirmative answer to that special issue.'" Wilson
v. State, 7 S.W.3d 136, 142 (Tex. Cr. App. 1999), quoting
Bell v. State, 938 S.W.2d 35, 41 (Tex. Cr. App. 1996). The State
contends that this is a case in which the circumstances of the crime
clearly and sufficiently demonstrate the future danger that the
appellant poses to society. We agree.
The appellant participated directly in the
atrocious treatment of Musso in the days leading up to his death. She
physically abused Musso and directed O'Malley to do so as well.
Furthermore, the evidence reveals that the appellant maintained an
authoritative role among the group of co-defendants and explicitly
encouraged the continued abuse. The evidence suggests that the
appellant financially exploited Musso while he was under her control
and that she murdered him for the expected insurance benefits. The
punishment stage revealed evidence of the appellant's criminal
history, which included a forgery conviction and prior felony
probation. The appellant's daughter and son-in-law testified to her
physical, emotional, and sexual abuse of her son and to her highly
manipulative character. Based on the evidence, the jury could have
found beyond a reasonable doubt that the appellant probably would be a
continuing threat to society. Point of error twenty-three is
While this Court is able to review the legal
sufficiency of the evidence with respect to the future dangerousness
issue, we do not conduct factual sufficiency reviews of this
punishment issue. See Ex parte McGinn, 961 S.W.2d 161, 169
(Tex. Cr. App. 1998); Chamberlain v. State, 998 S.W.2d 230,
233 (Tex. Cr. App. 1999). Point of error twenty-four is overruled.
Medication of Appellant During Trial
In her first and second points of error, the
appellant claims that she was involuntarily medicated while in jail
during the guilt and punishment stages of her trial, that her
attorneys received no notice from the State of her treatment, and that
she was denied a fair trial as a result. The appellant argues that the
"State's secretive medicating" of her violated (1) her right to due
process under the Fifth and Fourteenth amendments to the United States
Constitution, (2) her right to demonstrate her true mental state to
the jury, and (3) her right to effective representation by counsel, as
she was unable to communicate effectively with her attorneys during
trial. Citing Riggins v. Nevada, 504 U.S. 127 (1992), the
appellant insists that the State's failure to show the necessity of
the medication to the achievement of an essential state policy means
that the appellant's constitutional rights were violated by the
The State, on the other hand, argues that the
Riggins standard is inapplicable to this case because the record
does not show that the appellant received her medication
"involuntarily." We agree. In Ex parte Thomas, 906 S.W.2d 22,
24-25 (Tex. Cr. App. 1995), we held that in order for the Riggins
test to apply, the record must affirmatively reflect that the
defendant was "forcibly medicated." While in jail, the appellant
received daily doses of Zoloft, an anti-depressant drug, and
Trazadone, medication to treat her insomnia. However, there is no
indication that her taking these drugs was involuntary. In fact, the
appellant herself requested Ativan (medication she had used in the
past) to alleviate her anxiety problems, and a state psychiatrist
prescribed the Zoloft and Trazadone only after advising the appellant
of the recommended treatment and receiving the appellant's consent.
Even if, as the appellant contends, the side
effects of the prescribed medication frustrated her communications
with her defense attorneys, this was a consequence of the appellant's
own choices. The fact remains that the appellant's use of prescription
drugs was voluntary. Similarly, defense counsel's lack of notice
regarding the appellant's medication (though not relevant to whether
the treatment was voluntary) was due to the appellant's failure to
inform her attorneys of her treatment. In this situation, the
appellant cannot reasonably argue that she was deprived of due process
by circumstances arising from her own voluntary actions. Points of
error one and two are overruled.
Denial of Request for Funds for Medical
In point of error three, the appellant argues that
the trial court erred in denying the defense's request for
state-funded medical tests to determine the cause of the appellant's
physical disabilities. Throughout the trial, the appellant remained
confined to a wheelchair, and certain evidence showed that she was
unable to walk. The State, however, presented evidence that over the
course of her medical treatment while in State custody, the appellant
had "feigned illness" and had "cried wolf" to the extent that her
treating physicians were unable to identify any specific disorder.
Following her trial, but prior to the hearing on the motion for new
trial, the appellant underwent an electromyelogram (EMG) to test the
quality of the nerves in her legs. The results showed some level of
nerve damage. The defense wished to hire medical experts to perform
additional tests - biopsies on the appellant's muscle and nerve fibre
in her legs - in order to establish that the appellant suffered from
legitimate ailments and was not simply "malingering" or "faking" her
condition as the State claimed. According to the appellant, evidence
of her true physical disabilities (1) would have suggested to the jury
that the appellant was physically unable to commit the acts of which
she stood accused and (2) would have provided sufficient mitigation at
the punishment stage. The defense made its request for medical experts
during a hearing on its motion for new trial. The trial court denied
The Supreme Court has acknowledged an indigent
defendant's right to expert medical assistance provided by the State.
See Ake v. Oklahoma, 470 U.S. 68 (1985)(holding that the
appellant was entitled to psychiatric assistance in preparation for
and in presentation of his insanity defense). Two aspects of Ake
are significant in that they demonstrate its limited holding with
respect to this case. First, the Court focused its discussion on the
necessity of medical experts in "the building of an effective
defense" Id. at 77 (emphasis added). The Court emphasized a
defendant's right to an expert who will help "to present testimony
and to assist in preparing the cross-examination of a State's [expert]
witness" and assist "in evaluation, preparation and presentation
of [a] defense," yet it did not discuss the right to such
assistance in a post-trial context. Id. at 82, 83 (emphasis
Second, the Supreme Court discussed at length the
important role of medical experts in "enabl[ing] the jury to make its
most accurate determination of the truth on the issues before them."
See id. at 80-81. This characterization of expert testimony
as an aide to jurors in their evaluation of scientific evidence
indicates a primary concern for a "defendant's ability to marshal his
defense" during trial. We know of no case in which this Court has
extended a defendant's right to appointed medical experts to
post-trial proceedings, and we decline to do so here.
Furthermore, even if the trial court had approved
the appellant's post-trial request for the appointment of medical
experts, there is nothing to suggest that additional testing would
have yielded results relevant to the appellant's motion for new trial.
At that time, the record already reflected the nerve damage in the
appellant's legs, and the question whether further testing would
establish the appellant's right to a new trial was within the trial
court's discretion. The trial court did not abuse that discretion in
denying the appellant's request. Point of error three is overruled.
Denial of Ex Parte Hearing on and Request
for Expert Assistance
In point of error four, the appellant claims that
the trial court erred in denying her an ex parte hearing on her motion
for expert assistance and funds to pay for such assistance. According
to the appellant, her defense required testimony regarding false
confessions and mitigation issues. After the defense submitted written
motions requesting funds to hire such experts ("Ake"
motions), the trial court refused to hold an ex parte hearing on the
In Williams v. State, 958 S.W.2d 186, 194
(Tex. Cr. App. 1997), we held that "an indigent defendant is entitled,
upon proper request, to make his Ake motion ex parte"
and that it was error for the trial court to overrule the appellant's
request for an ex parte hearing. The need for an ex parte hearing on
an Ake motion arises from the nature of the information that
the court must evaluate in ruling on the motion. Requiring a defendant
to make a preliminary showing of need in order to prevail in his
request for expert assistance forces the defense to disclose its
theories or "work product." Id. at 193. Therefore, our
concern in Williams was protecting the confidentiality of an
indigent defendant's trial strategy while still allowing him to seek
the expert assistance to which he was entitled under Ake.
Even if the trial court erred, in this case, "its
failure to allow [the] appellant to make [her] Ake motion
ex parte was harmless beyond a reasonable doubt." See
Williams, 958 S.W.2d at 194. (3)
Here, the appellant does not claim she was harmed by having to reveal
to the State any defensive "work product" or trial theory. The
appellant essentially argues that the lack of an ex parte hearing
deprived her of the opportunity to demonstrate a "compelling need" for
certain experts. However, she does not claim that an ex parte hearing
would have revealed anything more than the information already
presented in her written motions. As discussed below, the appellant
was not entitled to the expert assistance she requested, and the trial
court would have been justified in denying her motions even after
hearing them ex parte. Therefore, the court's refusal to hold the
hearing was harmless.
The appellant further argues that the trial court
erred in denying her motion for expert assistance on false confessions
and mitigation issues. To receive court-appointed expert assistance
under Ake, an indigent defendant first must make a
"preliminary showing of a significant issue of fact on which the State
would present expert testimony, and which the knowledge of a lay jury
would not be expected to encompass." Jackson v. State, 992
S.W.2d 469, 474 (Tex. Cr. App. 1999).
The appellant provides no basis for her need for an
expert on false confessions and makes no showing that the falsity of
her confession was a "significant issue" in her trial. In fact, as the
State points out, the trial court held a hearing on the appellant's
motion to suppress her confession to police, and no evidence of
coercion or "falsity" of the confession was produced. Also, a
sufficient amount of the State's evidence at trial corroborated the
confession, and the State did not offer any expert testimony on the
veracity of the statement. Furthermore, we agree that this issue is
not of the kind that requires scientific or other expert testimony to
assist the jury in its determination of the relevant facts.
The appellant's need for expert assistance on
"mitigation" is also questionable. The appellant claims that although
the defense had access to two psychologists - one of whom was
court-appointed - these individuals lacked sufficient expertise in the
"field of mitigation." The appellant also complains that the testimony
of one of these psychologists "was probably as helpful for the State
as [it] was for the defense." While an indigent defendant has a right
to expert assistance, he is not necessarily entitled to "choose [an
expert] of his personal liking," nor is the State required to
"purchase for the indigent defendant all the assistance that his
wealthier counterpart might buy[.]" Ake, 470 U.S. at 83, 77.
In this case, the expert who was retained with court-authorized funds
was a licensed attorney and psychologist. He assisted the defense in
the areas of mitigation and future dangerousness as they specifically
related to the appellant. The appellant received competent expert
assistance on the issue of mitigation, and the trial court did not err
in refusing to provide an additional expert on this issue. Point of
error four is overruled.
Ineffective Assistance of Counsel - Failure
to Request Expert Medical Assistance
The appellant's fifth and sixth points of error
claim ineffective assistance of counsel at both the guilt and
punishment stages of trial due to defense counsel's failure to request
appointed expert medical assistance. The appellant argues that an
effective defense required contradiction of the State's allegations of
her "malingering" and "manipulative" behavior with respect to her
physical condition at her competency hearing. Prior to trial, the
defense did not request funds to hire the medical experts that the
appellant now claims she needed to show that her physical impairments
were in fact genuine. The appellant contends that as a result, she was
denied a fair trial. She claims that had she been able to present
evidence of her disabilities, she would have been found incompetent to
stand trial or, alternatively, would not have received a death
To prevail on a claim of ineffective assistance of
counsel, the appellant must satisfy, by a preponderance of the
evidence, a two-pronged test. See Strickland v. Washington,
466 U.S. 668 (1984). First, the appellant must show deficient
performance on the part of defense counsel. Id. at 687. This
requires a showing that counsel's performance "fell below an objective
standard of reasonableness based upon prevailing professional norms.
Jackson v. State, 973 S.W.2d 954, 956 (Tex. Cr. App. 1998).
Second, the deficient performance must have caused prejudice to the
defense. Strickland, 466 U.S. at 687. The appellant must
demonstrate "a reasonable probability that but for this deficient
performance, the outcome of the proceedings would have been
different." Jackson, 973 S.W.2d at 956.
The appellant provides no evidence that defense
counsel's performance was deficient. The evidence shows that the
appellant exhibited a wide variety of physical and mental illnesses
throughout her trial and that on numerous occasions, physicians at
several different medical facilities attempted to diagnose her
condition. However, the appellant appeared to frustrate these
attempts, either by feigning certain illnesses or by refusing to
cooperate in the treatment altogether. In fact, the first time that
doctors tried to conduct an EMG (the very test the appellant claims
her attorneys should have requested) on the appellant, she refused to
allow them to complete the test. Given the difficulty that medical
professionals experienced in their attempts to identify the cause and
extent of the appellant's medical problems, the failure of her defense
attorneys to request additional medical testing cannot constitute
deficient performance. Because defense counsel's performance was not
deficient we need not consider whether it prejudiced the defense.
Points five and six are overruled.
Failure to Disclose Brady Material,
Denial of Motion for Continuance, Denial of Motion to Reopen
The appellant claims, in point of error eight, that
the State failed to disclose exculpatory information - ie., Brady
(4) material - in a timely manner and, in point of error
seven, that the trial court erred in granting a continuance of only
one day to allow the defense to investigate the information more
thoroughly. Point of error thirteen alleges error in the trial court's
refusal to reopen the hearing on the appellant's motion to suppress
evidence after the defense learned of the evidence. The appellant's
argument fails because the defense learned of the information at issue
before the trial and because the information itself does not
constitute Brady material.
Before the appellant's trial, her son and
co-defendant, J.D. O'Malley, was tried and convicted for Musso's
murder. During O'Malley's trial, questions were raised concerning the
circumstances surrounding and the voluntariness of his confession to
police. O'Malley, who suffered from mental deficiencies, claimed that
officers from the Galena Park Police Department had "deputized" him in
order to gain his cooperation and confession. Several officers, in
turn, testified that they knew nothing about the "deputization." As a
result of O'Malley's confession, police recovered evidence from a
dumpster linking the appellant to the crime.
A former Galena Park police officer, Floyd Sanson,
later spoke to the prosecuting attorney and expressed his belief that
the officers had committed perjury during O'Malley's trial by claiming
they were unaware of the "deputization." Sanson provided this
information also to F.B.I. special agents and an investigator with the
public integrity division in district attorney's office. Prosecutors
did not inform the appellant's defense attorneys of Sanson's
allegations, but at some point, defense counsel learned of his claims
and hired an investigator to locate Sanson. On the Friday before the
trial was scheduled to begin, Sanson met with the appellant's
attorneys to discuss the information. In addition to his allegations
of perjury, Sanson suggested to the appellant's attorneys that police
had recorded O'Malley's interrogation but had withheld or destroyed
the audio tapes. Based on this information, the defense moved for a
continuance, and the trial court held a one-day hearing on the motion.
After hearing testimony from former and current members of the Galena
Park Police Department, the court denied the appellant's motion for
continuance, finding that the issue of O'Malley's "deputization" was
not relevant to the appellant's trial.
These facts clearly indicate that, before trial,
the defense knew of Sanson's claims, discovered the specific nature of
them, and had the opportunity to investigate the allegations further.
Even if the information regarding the circumstances of O'Malley's
confession qualified as Brady material,
(5) giving the State an affirmative duty to disclose it to
the appellant, the State's failure to do so did not harm the appellant
because she was already aware of the information.
The appellant's point is without merit for a second
reason. Despite the interest that the appellant's defense attorneys
may have had in the circumstances surrounding the taking of O'Malley's
confession, the information does not constitute Brady
material, and the State, therefore, was not obligated to disclose it
to the defense. The Due Process Clause of the Fourteenth Amendment
requires the prosecution to disclose only evidence that is (1)
favorable to the defendant and (2) material either to guilt or
punishment. United States v. Bagley, 473 U.S. 667, 674
(1985); Brady v. Maryland, 373 U.S. 83, 87 (1963). Favorable
evidence is that which "if disclosed and used effectively, . . . may
make the difference between conviction and acquittal." Bagley,
473 U.S. at 676. It includes exculpatory as well as impeachment
evidence. Id.; Thomas v. State, 841 S.W.2d 80 (Tex.
Cr. App. 1992). "[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different." Bagley,
473 U.S. at 682.
The evidence complained of here was neither
favorable to the defense nor material to the outcome in the
appellant's trial. First, the evidence had no exculpatory value to the
appellant. Assuming that O'Malley's confession was improperly obtained
by police, the appellant has no standing to contest the issue. See
McMahon v. State, 582 S.W.2d 786 (Tex. Cr. App. 1978), cert.
denied sub nom. McCormick v. Texas, 444 U.S. 919 (1979)(holding
that the defendant was not entitled to suppression of a co-defendant's
confession based on violations of the co-defendant's rights).
Therefore, even if the appellant had learned of the evidence directly
from the State, the evidence would have been irrelevant to and
inadmissible at the appellant's trial. Evidence of violations of
O'Malley's rights could not have been "used effectively" by the
appellant's defense and would not have "made the difference between
conviction and acquittal."
Second, the evidence of O'Malley's illegally
obtained confession had no practical impeachment value to the
appellant. Although, as the appellant argues, the allegations of
perjury related to the credibility of certain officers, evidence of
specific instances of their untruthfulness would have been
inadmissible under Rule of Evidence 608(b) to impeach the officers'
truthfulness in the appellant's trial.
Finally, the evidence at issue was not material to
either the appellant's guilt or punishment. As stated above,
disclosure of the means by which police obtained O'Malley's confession
would not have assisted the appellant in her defense simply because
the issue was not relevant to her trial. Because the evidence would
have been inadmissible at her trial, it is not reasonably probable
that disclosure of the information by the State would have led to a
different result in the proceeding.
Evidence that police obtained O'Malley's confession
in violation of his rights was not Brady material in the
appellant's trial; therefore, the State was under no duty to disclose
the evidence to the defense. The trial court did not err in denying
the appellant's motion for continuance, as further investigation by
the appellant's attorneys would not have materially affected her
defense. Points of error seven and eight are overruled.
Likewise, there was no error in the court's refusal
to reopen the hearing on the appellant's motion to suppress the
evidence obtained from the dumpster (as a result of O'Malley's
confession) and the appellant's own confession. The decision to hold a
hearing on a motion to suppress evidence remains within the trial
court's discretion, and the court may choose to evaluate the merits of
the motion during the trial itself. Calloway v. State, 743
S.W.2d 645, 649 (Tex. Cr. App. 1988). Because the appellant had the
opportunity to object to the evidence during the trial on the merits
and had no standing to object to the fruits of O'Malley's confession,
the court did not abuse its discretion by denying the appellant's
motion to reopen the hearing on the motion to suppress. Point of error
thirteen is overruled.
Ineffective Assistance of Counsel -
Failure to Object to Opinion Testimony
Point of error number nine is another ineffective
assistance of counsel claim. The appellant argues that she was
deprived of effective assistance of counsel by her attorneys' failure
to object at the punishment stage to opinion testimony offered by
Christina and Scott Hardy, the appellant's daughter and son-in-law.
Both witnesses testified that the appellant had physically abused
O'Malley throughout his life, and they offered their opinions as to
his level of intelligence and mental capabilities. The appellant
claims that this testimony was inadmissible under Rule of Evidence 702
because the evidence did not satisfy the test set forth in Kelly
v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992), which is used to
determine the admissibility of scientific evidence under Rule 702. We
The testimony of Scott and Christina Hardy
regarding O'Malley's mental retardation is not "scientific, technical,
or other specialized knowledge," which would require expert
qualification under Rule 702. Instead, their testimony qualifies as
opinion testimony by lay witnesses, which is governed by Rule 701.
Under Rule 701, such testimony is "limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the witness'
testimony …." Rule of Evidence 701. The Hardys testified to their
personal knowledge of the abuse the appellant inflicted on her son,
and it was reasonable for them, even in the absence of scientific
expertise, to link such abuse to the developmental problems O'Malley
exhibited. Therefore, Rule 702 and Kelly are not controlling.
Defense counsel's failure to object to the testimony as inadmissible
expert testimony did not constitute deficient performance under the
Strickland test. Point of error nine is overruled.
Ineffective Assistance of Counsel --
Failure to Request Accomplice Witness
In point of error ten, the appellant again alleges
ineffective assistance of counsel, citing her attorneys' failure to
request the inclusion of an accomplice-witness instruction in the jury
charge. Before the appellant's trial, Hope Ahrens had been tried as a
co-defendant in Musso's murder. Her trial resulted in a mistrial, and
she remained under indictment when she testified at the appellant's
trial. The appellant claims that because Ahrens was an accomplice as a
matter of law, the jury should have received an instruction requiring
corroboration of Ahrens's testimony pursuant to Article 38.14.
According to the appellant, defense counsel's failure to request such
an instruction constitutes ineffective assistance of counsel under the
"One who is indicted for the same offense with
which the defendant is charged is an accomplice as a matter of law."
Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Cr. App.
1991)(citing East v. State, 702 S.W.2d 606 (Tex.Cr.App.
1985)). Thus, the appellant was entitled to an instruction that
Ahrens's testimony should be considered in jury deliberations only if
"corroborated by other evidence tending to connect the defendant with
the offense committed." Tex. Crim. Proc. art. 34.14. During the
hearing on the appellant's motion for new trial, her defense attorney
testified that his failure to request an instruction was not a
strategic decision, but merely an oversight on his part. Clearly,
defense counsel should have requested the instruction, and his
allowing the omission to "slip by" him fell below the objective
standard of reasonableness required under Strickland.
Having determined that defense counsel's failure to
request an accomplice-witness instruction constitutes deficient
performance, we must consider whether, but for this failure, the
outcome of the trial would have been different. The appellant claims
that "[Ahrens's] testimony needed to be put in the most suspect light"
and that a proper instruction would have "made [her] testimony more
suspect[.]" This argument, however, runs contrary to our recent
discussion of the role of the accomplice-witness instruction in
Herron v. State, 86 S.W.3d 621 (Tex. Cr. App. 2002):
The instruction does not say that the jury should
be skeptical of accomplice witness testimony. Nor does it provide for
the jury to give less weight to such testimony than to other evidence.
[It] merely informs the jury that it cannot use the accomplice witness
testimony unless there is also some non-accomplice evidence connecting
the defendant to the offense. Once it is determined that such
non-accomplice evidence exists, the purpose of the instruction is
fulfilled.... Therefore, non-accomplice evidence can render harmless a
failure to submit an accomplice witness instruction by fulfilling the
purpose an accomplice witness instruction is designed to serve.
86 S.W.3d at 632.
The question of whether the failure to include the
instruction in the jury charge affected the outcome of the trial turns
on the amount and nature of the non-accomplice, or corroborating,
evidence. Under the egregious harm standard, (6)
a defendant is harmed by the omission of an accomplice-witness
instruction only if the corroborating evidence is "so unconvincing in
fact as to render the State's overall case for conviction clearly and
significantly less persuasive." Saunders v. State, 817 S.W.2d
688, 692 (Tex. Cr. App. 1991). In this case, there was significant
non-accomplice evidence that tended to connect the appellant to
Musso's murder. From the time Musso arrived in Houston to live with
the appellant, she exercised significant control over him. Claiming to
be Musso's legal guardian, the appellant attempted to have herself
named as his representative payee of Musso's social security benefits.
She possessed insurance certificates for Musso's accidental death
insurance policy and described herself as his "wife-to-be" in seeking
designation as a beneficiary on a separate life insurance policy. The
appellant was at the scene of Musso's death (Ahrens's apartment) just
a few days before the murder, where she informed police that she had
instructed O'Malley to make Musso go running that day. After Musso's
death, the appellant lied about her knowledge of his whereabouts,
claiming that Musso had probably run away with a woman he met at a
Finally, and most important, the appellant provided
a written confession in which she described her participation in the
brutal treatment of Musso. The confession corroborated Ahrens's
testimony that Musso had been forced to kneel on a plastic mat and
that the appellant had beaten him with a baseball bat and belt. The
appellant admitted that she carried Musso's body in the trunk of
Bernice Ahrens's car to the site where the body was found and that she
drove the car to the dumpster where police later found other
We cannot say that, in the absence of Ahrens's
testimony, the above evidence is so unconvincing as to render "the
State's overall case for conviction clearly and significantly less
persuasive." Any failure to request an accomplice-witness instruction
was harmless, and there is not a reasonable probability that, but for
defense counsel's failure to request an instruction, the trial would
have resulted in an acquittal. Point of error ten is overruled.
Denial of Motions to Quash the Indictment
In point of error eleven, the appellant argues that
the trial court erred in denying her motions to quash the indictment.
She identifies two parts of the indictment that she claims provided
inadequate notice to allow her to prepare a defense: (1) the language
in the first paragraph that Musso was beaten with an "unknown object"
and (2) the description of the remuneration for which she murdered
Musso set forth in the second paragraph.
With respect to the use of "unknown object" to
describe the murder weapon, the appellant contends that she was
entitled to notice of the person or persons to whom the object was
unknown. We disagree. As the State noted in its reply brief, because
it is the grand jury that issues an indictment, "if the grand jury
says the object is unknown, then it is reasonable to infer that it was
unknown to the grand jury." The absence of the words "to the grand
jury" in the description of the object as "unknown" did not deprive
the appellant of adequate notice of the allegations against her.
The second paragraph of the indictment alleged that
the appellant murdered Musso "for remuneration and the promise of
remuneration, namely, proceeds from an insurance policy on Louis Musso
in which [the appellant] is the named beneficiary as well as other
assets in which [the appellant] is the named heir …." The appellant
argues that this description of remuneration lacked the requisite
specificity to allow preparation of her defense based on the absence
of the name and and number of the insurance policy or policies and the
general language of "other assets."
Under Penal Code section 19.03(a)(3), "a person
commits an offense if he [intentionally or knowingly causes the death
of an individual] and … the person commits the murder for remuneration
or the promise of remuneration[.]" When an indictment "contains all of
the constituent elements of an offense under … Penal Code, Sec.
19.03(a)(3)[,] [t]he additional information [regarding remuneration]
requested [in a] motion to quash is evidentiary and not required for
purposes of notice and plea in bar." May v. State, 618 S.W.2d
333, 341 (Tex. Cr. App. 1981). Such an indictment "sufficiently
alleges facts to enable the appellant to prepare his defense and is
not subject to a motion to quash." Id. In this case, the
indictment alleged the essential element of remuneration, and the
appellant was not entitled to greater specificity. Point of error
eleven is overruled.
Denial of Motion for Change of Venue
In point of error twelve, the appellant claims that
the trial court erred in denying her motion for change of venue. She
argues that extensive newspaper, radio, and television coverage of the
appellant and her co-defendants' cases prevented the selection of an
impartial jury and deprived her of a fair trial.
A trial court may grant a defendant's motion for
change of venue upon a finding that "there exists in the county where
the prosecution is commenced so great a prejudice against [the
defendant] that he cannot obtain a fair and impartial trial." Art.
31.03(a)(1). The court's decision to deny a change of venue will not
be reversed absent an abuse of discretion. Bell v. State, 938
S.W.2d 35, 46 (Tex. Cr. App. 1996). In ruling on the motion, the trial
court may use the jury selection process to measure the climate of the
community. Id. Furthermore, media coverage and high publicity
alone are not sufficient to require a change of venue; the defendant
must show that the publicity is "pervasive, prejudicial, and
inflammatory." Id. Finally, "[w]hen there is
conflicting evidence on the issue, a court's decision regarding change
of venue will not normally be considered an abuse of discretion."
Aranda v. State, 736 S.W.2d 702, 705 (Tex. Cr. App.
In support of her motion for change of venue, the
appellant offered articles from local newspapers that reported Musso's
murder and the subsequent trials of the appellant and her
co-defendants. These articles often described the appellant as the
"alleged ringleader" or "driving force" behind the murder, but they
also included information regarding the acquittal of two of the
co-defendants of capital murder and Hope Ahrens's mistrial. Also, a
local radio advertising salesperson testified to the subliminal effect
that hearing repetitive information may have on prospective jurors.
In response, the State offered evidence concerning
the venire in the earlier trials of the appellant's co-defendants. The
testimony suggested that those prospective jurors were not unduly
affected by the pretrial publicity in the case and indicated that the
attorneys in those trials did not have to quash a panel due to a
shortage of unbiased venirepersons. A criminal defense attorney
testified that the size of the Harris County jury pool allowed for the
selection of unbiased jurors in highly publicized cases. Finally, the
State offered a prosecutor's testimony that in highly publicized
cases, media coverage familiarizes less than ten percent of the venire
with the facts of the case, and that even fewer prospective jurors
have preconceived opinions as to the defendant's guilt or innocence.
Because the appellant's evidence did not show
"pervasive, prejudicial, and inflammatory" publicity, and given the
conflicting evidence presented by the State at the venue hearing, the
trial court did not abuse its discretion in denying the appellant's
motion for change of venue. Point of error twelve is overruled.
Denial of Motion to Suppress Evidence
In point of error fourteen, the appellant claims
that the trial court erred in refusing to suppress evidence seized as
a result of O'Malley's confession. The appellant argues that because
O'Malley's confession was illegally obtained, Article 38.23 requires
that any evidence obtained as a result of the confession is
inadmissible against the appellant. The appellant's argument
misconstrues the scope of Article 38.23. The appellant has no standing
to challenge a violation of the rights of a third party under Article
38.23. See Chavez v. State, 9 S.W.3d 817, 819 (Tex. Cr. App.
2000); Fuller v. State, 829 S.W.2d 191, 202 (Tex. Cr. App.
1992). Therefore, any illegality that may have occurred during the
taking of O'Malley's confession does not provide a basis for excluding
the fruits of that confession at the appellants's trial. Point of
error fourteen is overruled.
Admission of Victim's Hearsay Statement
In her fifteenth point of error, the appellant
complains of the admission of a statement Musso made to Bruce Byerly
several days before Musso was killed. Byerly encountered Musso in his
driveway and noticed that Musso had a black eye, blood on his chest,
and a cut on his head. When Byerly offered to call the police or an
ambulance, Musso declined, insisting that if anyone were called, the
appellant would hurt him again. In a pretrial motion, the appellant
objected in writing to Byerly's anticipated testimony. The court
overruled the objection, and at trial Byerly testified:
A. That's the second conversation I ever had with
[Musso] and like you know he's walking down the driveway with no shirt
on and like, and I just - I asked him - I says "Can I call the
ambulance or a police for you" cause I figured he got beat up.
Q. What did he say?
A. He said, "No. If you call anybody she'll beat me
The appellant contends that the statement is
inadmissible hearsay. We disagree. Because Musso's statement to Byerly
qualifies as an excited utterance under Rule of Evidence 803(2), it
was properly admitted as a hearsay exception. Point of error fifteen
Voir Dire of Venire in Competency Hearing
In point of error sixteen, the appellant contends
that during voir dire at the competency hearing, the trial court erred
in allowing the State to refer to the appellant's trial in progress
and to place the burden of proof on the issue of competency on the
defense. Prior to the competency hearing, the trial court granted the
portion of appellant's motion in limine requesting that the State be
instructed not to inform the jury that the appellant faced a capital
murder charge or that "the outcome of the trial for the indicted
offense would be affected by the jury's verdict in [the] hearing."
During voir dire, the State suggested to the jury that a finding of
incompetence could "interrupt proceedings" that might then be "totally
canceled and thrown away." The appellant's objection to these comments
was overruled. The State later made additional statements regarding
the potential effect that the jury's finding would have on the trial
on the merits, to which the appellant did not object. Nor did the
appellant object to the State's suggestion that where a finding of
competence interrupts the trial, the defense bears the burden at the
The preservation of error requires a timely
objection, which means a defendant must object each time inadmissible
evidence is offered or to request a running objection to the line of
testimony. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Cr.
App. 1991). A trial court's grant of a motion in limine does not
preserve error; a defendant must object when the evidence is offered.
Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Cr. App. 1994).
Following the court's ruling on her objection to the first statement,
the appellant did not preserve error with respect to the State's
additional comments about her trial in progress. Furthermore, "[e]rror
is defaulted when the same evidence is presented elsewhere without
objection." Nenno v. State, 970 S.W.2d 549, 563 (Tex. Cr.
App. 1998). Therefore, the appellant forfeited the right to complain
of any error in the trial court's overruling of her objection by her
failure to object to the subsequent comments. Likewise, because the
appellant did not object when the State told the jury that the defense
bore the burden of proof, no error with respect to that comment was
preserved for review. Point of error sixteen is overruled.
Exclusion of Testimony at Competency Hearing
In her seventeenth point of error, the appellant
claims that the trial court erred in sustaining the State's objection
to a question asked of a psychologist during the competency hearing.
Jerome Brown, a psychologist who had evaluated the appellant,
discussed at length the similarities and differences between
malingering and a factitious disorder. He testified that, in his
opinion, the appellant was faking mental illness. When pressed by
defense counsel to provide a psychiatric diagnosis of the appellant,
Brown emphasized that whether the appellant was malingering - or had a
factitious disorder - and whether she was competent to stand trial
were "two very different questions." The defense attorney then asked
Brown whether he believed that the appellant had a factitious
disorder. The State objected to the relevance of the question, and the
court sustained the objection. Shortly thereafter, defense counsel
asked Brown whether he had "rule[d] out" a factitious disorder in his
diagnosis of the appellant. This question, in effect, sought the same
information as the one to which the State had objected. Brown said he
had not ruled it out and that the appellant was "exhibiting some
symptoms that are possibly factitious."
At the conclusion of Brown's testimony, the defense
perfected a bill of exception concerning the testimony that was
excluded in the presence of the jury. When asked for his diagnosis of
the appellant, Brown stated that he would not "rule out factitious
disorder" and that the appellant's belief that she was going blind was
"possibly a factitious symptom." This testimony was essentially
identical to the testimony that occurred in the jury's presence. While
the court did not allow the defense to ask the specific question, "Do
you believe that [the appellant] has a factitious disorder?" before
the jury, the substance of the testimony from the bill of exception -
the evidence that would have been produced but for the sustained
objection - was subsequently admitted. When a defendant offers and the
court admits the same testimony as that objected to, the defendant is
not in position to complain on appeal. See Stoker v. State,
488 S.W.2d 1, 12 (Tex. Cr. App. 1989). Point of error seventeen is
Admission of Testimony Referring to
In point of error eighteen, the appellant argues
that the trial court erred in denying her motion for a mistrial after
a State's witness referred to her co-defendant's confession. Police
Chief Robert Pruett was asked when the police "booked" the appellant
for Musso's murder, and he responded, "After her son [O'Malley]
confessed." The trial court sustained the defense attorney's
objection, instructed the jury to disregard Pruett's answer, but
denied the appellant's motion for a mistrial. The appellant cites
Bruton v. United States, 391 U.S. 123 (1968), for the proposition
that this violated her right to confront and cross-examine adverse
witnesses. In Bruton, the Supreme Court held that a defendant
is deprived of his rights under the Confrontation Clause, despite a
trial court's limiting instruction to the jury, when the State
introduces the confession of a non-testifying co-defendant. In this
case, however, Bruton is not on point. Here, the State did
not attempt to introduce O'Malley's confession itself into evidence or
to use it for any other purpose. The only mention of the confession
was Pruett's indication of its existence; no prejudicial details of
the confession were revealed to the jury.
Furthermore, an instruction to disregard
prejudicial testimony cures any resulting harm unless "the evidence is
clearly calculated to inflame the minds of the jury and is of such a
character as to suggest the impossibility of withdrawing the
impression produced on their minds." Ladd v. State, 3 S.W.3d
547, 567 (Tex. Cr. App. 1999)(quoting Gardner v. State, 730
S.W.2d 675, 696 (Tex. Cr. App. 1987)). Even if the general reference
to O'Malley's confession harmed the appellant, the testimony was not
intended to inflame the jury, and its character was not of the kind
that would leave an indelible impression in their minds. The court's
instruction to disregard was sufficient to cure the harm, if any, and
the court properly denied the motion for a mistrial. Point of error
eighteen is overruled.
Submission of Theory in Jury Charge - Cause
In point of error nineteen, the appellant claims
error in the portion of the charge that allowed her conviction as a
party to Musso's murder by someone other than O'Malley using his or
her feet as a deadly weapon. She argues that there was no evidence
that anyone other than O'Malley kicked Musso or that Musso died as a
result of being kicked. Therefore, the appellant argues, the inclusion
of "feet" within the description of deadly weapon used by the
appellant or any co-defendant other than O'Malley was error.
The evidence was inconclusive as to the particular
object and specific individual who inflicted the fatal wound. The
medical examiner testified that one of the two large lacerations on
Musso's scalp was attributable to what was probably the fatal blow. ,
While the medical examiner was unable to determine the exact object
that was used to inflict the wound or the related skull fracture, he
testified that the wounds could have been caused by a "big boot." Hope
Ahrens testified that O'Malley, while wearing combat boots, had kicked
Musso. In her statement to police, the appellant claimed that she had
seen Craig Ahrens kick and body-slam Musso. The appellant stated that
Musso had suffered injuries as a result of being hit with bats and
belts and being "kicked, slapped, pushed against the wall, and pushed
against the bathtub," yet she did not identify which individuals
kicked Musso. Despite the lack of direct evidence of who caused
Musso's death or the weapon used, the jury reasonably could have found
from the circumstances that any of the appellant's co-defendants
killed Musso by kicking him with his or her foot. Point of error
nineteen is overruled.
Submission of Theory in Jury Charge -
The appellant's twentieth and twenty-first points
of error claim that the trial court erred in overruling the
appellant's objection to the portion of the charge relating to
remuneration. The appellant claims the court erroneously included, as
part of the description of the remuneration for which the appellant
and her co-defendants murdered Musso, Musso's life insurance policies
designating the appellant as beneficiary because, in fact, no such
designation was made. The State argues that the actual existence of a
policy naming the appellant as beneficiary is not determinative of the
issue of whether she murdered Musso for remuneration. Instead, the
appellant's expectation of receiving a financial benefit from the
killing controls the inquiry. We agree with the State's position.
Murder is elevated to a capital offense when
committed for remuneration or the promise of remuneration. See
Tex. Penal Code sec. 19.03(a)(3). In determining whether the
aggravating factor is present, "[t]he focus is on the actor's intent
or state of mind: Did the actor kill in the expectation of
receiving some benefit or compensation, e.g., life insurance
proceeds[.]" Beets v. State, 767 S.W.2d 711, 735 (Tex. Cr.
App. 1988)(emphasis added). "The element [of remuneration is]
fulfilled by the appellant's expectation of receiving money
as a result of the killing." Id. (emphasis added). The
evidence showed the following: (1) Certificates of insurance were
found at the appellant's home, including one for an accidental death
policy that would provide $65,000 upon Musso's death from a violent
crime; (2) the appellant had drafted an "amendment" to Musso's will
that stated that she was to receive "all of the insurance policies
that [Musso had] and all of the money that is to be in the policies";
and (3) an application for a life insurance policy on Musso, which
ultimately was not issued, named the appellant, Musso's "wife to be,"
as the beneficiary. Based on this evidence, the jury reasonably could
have inferred that the appellant believed that she was a beneficiary
of the policies and, thus, expected to benefit financially from
killing Musso. The court did not err in including the life insurance
policies among the types of remuneration in the charge. Points of
error twenty and twenty-one are overruled.
Submission of Theory in Jury Charge - Guilt
as a Party
In point of error twenty-two, the
appellant claims error in the court's charge because it allowed the
jury to convict the appellant of capital murder as a party to the
conduct of Hope Ahrens and Bernice Ahrens. The appellant contends that
a charge on the law of parties was not authorized because there is no
evidence that either Hope Ahrens or Bernice Ahrens killed Musso.
In accordance with Penal Code sections 7.01(a) and
7.02(a)(2), (7) the charge authorized
the appellant's conviction if the jury found that any one or all of
her co-defendants - including Hope and Bernice Ahrens - murdered Musso
and that the appellant, "with the intent to promote or assist the
commission of the offense, . . . solicited, encouraged, directed,
aided or attempted to aid" any or all of the co-defendants in the
murder. The appellant, in her written statement, claimed that both
Hope and Bernice Ahrens had beaten Musso and that Musso's body was
already in the trunk of Bernice's car when the appellant arrived at
the Ahrens' apartment. The appellant also admitted her participation
in the beatings and her role in disposing of the body and other
incriminating evidence. Other evidence showed that six individuals -
including the appellant, Hope Ahrens, and Bernice Ahrens - had
participated in the brutal treatment of Musso. Although inconclusive
as to which person actually inflicted the fatal wound, the evidence
was sufficient to support a jury's finding that the conduct of either
Hope or Bernice Ahrens, or both, caused Musso's death. Furthermore,
the evidence also demonstrated the appellant's role in assisting,
directing, and aiding in the commission of the crime. Therefore, the
charge properly permitted the jury to convict the appellant as a party
to the conduct of Hope and Bernice Ahrens. Point of error twenty-two
Burden of Proof on Mitigation Issue
In point of error twenty-five, the appellant claims
that the trial court erred in not assigning to the State the burden of
proof on the mitigation issue at the punishment stage. The appellant
argues that in light of the Supreme Court's holding in Aprendi v.
New Jersey, 530 U.S. 466 (2000), the imposition of a death
sentence requires that the State prove the absence of mitigating
circumstances beyond a reasonable doubt. We disagree.
We have held that neither party bears the burden of
proof at punishment on the mitigation special issue. Prystash v.
State, 3 S.W.3d 522, 535 (Tex. Cr. App. 1999); Lawton v.
State, 913 S.W.2d 542, 557 (Tex. Cr. App. 1995). The holding in
Aprendi does not affect our prior decisions or our
determination of the appellant's point. Where the finding of a fact
(other than a prior conviction) increases the authorized
punishment for a crime, the State must prove and a jury must find
that fact beyond a reasonable doubt. Ring v. Arizona, 122
S.Ct. 2428, 2439 (2002); Aprendi, 530 U.S. at 476 (emphasis
added). Under Article 37.071, there is no authorized increase in
punishment contingent on the jury's finding on the mitigation special
issue. See Ring, 122 S.Ct. at 2439. A jury will answer the
mitigation special issue only "if [it] returns an affirmative finding
to each issue submitted under Subsection (b) [future dangerousness and
guilt as a party]." Art. 37.071 sec. (2)(e)(1). In other words, a
jury's finding on mitigation occurs only after the State has proven
the elements of capital murder, at the guilt stage, and the
aggravating circumstances - evidence of the defendant's future
dangerousness - beyond a reasonable doubt. Prystash, 3 S.W.3d
at 535. By the time the jury reaches the mitigation issue, the State
has already demonstrated the defendant's eligibility for a death
sentence; a negative answer on mitigation cannot increase his
authorized punishment. The statute mandates only a reduction in
punishment to a life sentence upon an affirmative finding of
mitigation. See Art. 37.071 sec. (2)(g). Therefore,
Aprendi is not applicable to the appellant's point of error. The
trial court did not err in not assigning the burden on the mitigation
issue to the State. Point of error twenty-five is overruled.
Having found no reversible error, we affirm the
Delivered January 15, 2003.
Do not publish.
1. Unless otherwise indicated
all future references to Articles refer to the Code of Criminal
2. These factors include:
1) the circumstances of the capital offense,
including the defendant's state of mind and whether he was working
alone or in concert with other parties;
2) the calculated nature of the defendant's
3) the forethought and deliberateness exhibited by
the crime's execution;
4) the existence of a prior criminal record and the
severity of the prior offenses;
5) the defendant's age and personal circumstances
at the time of the commission of the offense;
6) whether the defendant was acting under duress or
intoxication or under the domination of another at the time of the
commission of the offense;
7) the lack of psychiatric evidence concerning
8) any relevant character evidence.
Keeton, 724 S.W.2d at 61.
3. In Williams, we held
that this error is constitutional in nature and therefore requires
reversal "unless the court determines beyond a reasonable doubt that
the error did not contribute to the conviction or punishment." 958
S.W.2d at 194 n. 9.
4. Brady v. Maryland,
373 U.S. 83 (1963).
5. As we explain below, the
information does not meet the requirements under Brady so as
to require disclosure by the State.
6. See Almanza v. State,
686 S.W.2d 157, 171 (Tex. Cr. App. 1985)(where the defendant has
failed to preserve error in the jury charge, reversal is required only
upon a showing of "egregious" harm).
7. The statute provides:
A person is criminally responsible as a party to an
offense if the offense is committed by his own conduct, by the conduct
of another for which he is criminally responsible, or by both. Tex.
Penal Code § 7.01(a).
A person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote
or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the
offense[.] Id. § 7.02(a)(2).