In points of
error one through three, appellant complains that the trial court
abused its discretion at the punishment phase in admitting victim
character evidence through Brenda's sister when she briefly
mentioned the victims' hobbies and Obie's military service. This
testimony comprises approximately two pages out of several hundred
pages in the reporter's record. Appellant made the following
objections to this evidence.
Okay. Judge, [Brenda's sister] is going to testify that her
father's name is Obie Bennett-was named Obie Bennett. She is going
to give his date of birth, how old he was, the fact that he was
married, how many children he had, that her mother was Obie
Bennett's wife, when she died, where he worked, for how long he
worked there, what he did at his employment, that he had served in
the armed forces, that he had fought in the Korean War, why he
moved into the house with Brenda and Myeshia Bennett, and when he
moved into the house with Brenda and Myeshia Bennett.
been in evidence that he usually worked out of the garage all the
time. She will testify to what he did in the garage, what type of
woodwork he did in the garage. And that's it. That's it on Obie
Okay. Judge, we object. With respect to the family, we object,
Your Honor, to the testimony about the honorable things that we
all know and can agree that Mr. Bennett did. The participation in
the armed forces, what he did for hobbies, we believe that those
are things that are outside the realm of victim impact, and have
more to do with who he was and the kind of person he was as
opposed to the effect he has on the family members not having him
around. And so we think that that part of the proffer that we have
talked about should not be admitted before the jury.
Thank you. Based on the current state of the record, that's
overruled, and that will be admitted. But we don't need a lot of
detail about his military service and so forth.
That's fine, Judge.
Just plain vanilla facts.
That's fine. And Ms. Bennett's date of birth, how old she was when
he [sic] died, where she worked, how long she worked there-how
long she worked there, what she did at work, how many children she
had, where she lived, how long she had lived in that place in that
house, and that she belonged to a trail riding club. And her major
hobby was riding horses. And that's it on Brenda Bennett.
And, Your Honor, we object to the testimony about the hobbies and
the club that she belonged to. It's not proper testimony for
victim impact testimony.
That's overruled. But I wouldn't want a lot of detail.
Okay. Judge, on Myeshia Bennett, date of birth, how old she was at
the time of her death, where she went to school, and basically,
that she also belonged to the same club as her mother on the trail
riding club. And that's it.
And we only object to that portion of testimony that applies to
her hobbies and belonging to the trail riding club as being
improper victim impact testimony.
argues that appellant procedurally defaulted his appellate claims
because his trial objections did not specifically raise them.
Assuming without deciding, however, that appellant preserved his
appellate claims, we decide that the trial court did not abuse its
discretion to admit "victim character evidence" providing a brief
"glimpse" into the victims' lives and background. See Salazar
v. State, 90 S.W.3d 330, 335-36 (Tex.Cr.App. 2002) (no abuse
of discretion for trial court to admit into evidence a "glimpse"
into victim's life and background). Points of error one through
three are overruled.
In point of
error four, appellant complains that Texas' capital-murder scheme
is "unconstitutional because there is no meaningful appellate
review of the special issues which determine the infliction of the
death penalty." In his brief, appellant acknowledges that this
Court has rejected the arguments he makes in point of error four
in Allen v. State, 108 S.W.3d 281, 285 (Tex.Cr.App.
2003), cert. denied, 540 U.S. 1185 (2004). We decline to
revisit appellant's "meaningful appellate review" issue. Point of
error four is overruled.
In point of
error five, appellant complains that "the trial court erred in
accepting appellant's plea of guilty because procedurally a
defendant may not plead guilty in a capital case, unless the State
waives the death penalty." Appellant argues that a trial court is
statutorily barred from accepting a guilty plea in a death-penalty
case because it is impossible to follow the procedures set out in
Article 26.14, Tex. Code Crim. Proc., which requires a jury to "assess
the punishment" after a guilty plea in a felony case. Appellant
argues that it is impossible to follow these procedures in a death-penalty
case because a jury does not "assess the punishment" (but only
answers special issues) in death-penalty cases. The State claims
that appellant is estopped from asserting this appellate claim
because he requested the procedure that the trial court followed.
appellant had pled guilty before the jury, the record reflects the
following proceedings outside the jury's presence:
We have been discussing [off the record] how we would proceed, and
since this came up kind of unexpectedly, I would think we would
proceed with the guilt phase and you can-State can present
whatever evidence they wish with regard to guilt, that then the
jury will be instructed to find the defendant guilty, and then
after the finding of guilt, we will proceed with the punishment
anyone who objects to that?
ATTORNEY WILLIAMS]: We do.
ATTORNEY CROWLEY]: The way to proceed-
It's always been my experience, if I may, basically, that you put
the whole case on, evidence guilt/innocence, punishment, then they
were instructed to go back and find the defendant guilty and
answer, I guess, the punishment issues.
Well, you may be right on that. Seems to me I read that somewhere.
That is how we have done it in nondeath cases.
So, is it your opinion that there will only be one deliberation
That's-that's correct, Your Honor.
Since we don't have a guilt/innocence phase, since this is the
punishment phase, basically.
No, because we have to put on evidence of his guilt.
Well, you put on evidence of his guilt to inform the jury, but the
plea of guilt establishes sufficient evidence. And putting on the
witnesses is to basically inform the jury's discretion-
Seems to me that I looked at that one other time and it seems to
me that[,] contrary to my common sense, I think you're right. My
recollection, they may be right. This is what I propose, you're
just going forward with guilt evidence?
But I guess it's important for opening statement, isn't it, if
we're going to do guilt and punishment phases together, then that
will change opening statements. Right? You only get one opening
statement. So I have to make the decision before we go any further.
You can still present-
It wouldn't change our opening statement, because we weren't going
to give one in guilt/innocence, only at the beginning of our case
Well, probably if we're going to do it, it seems to me there is
something in the back of my mind that they are right, we do it
together. So, I need to stop and look at that before we start. And
you can still proceed with all your guilt evidence. Everything for
guilt still comes in the same as before, so it won't affect how
you proceed today, but it might affect your opening statement. So,
let me see if I can figure that out. Let me go back-I left my
books in the back-and take another 10-minute break and let me
figure that out. Okay. Off the record.
jury was brought back into the courtroom, the trial court
instructed the jury that it would follow the procedure that
appellant had earlier requested.
Thank you. Please be seated. Members of the jury, since the
defendant has entered a plea of guilty, that will change the
procedure for conducting the trial somewhat. There will only be
one phase of the trial and one deliberation. And the parties, both
the State and defense, will be allowed to present evidence
relating to guilt and also relating to punishment.
So I wanted
to explain that things would be a little different than we
anticipated when the procedure was discussed with you before. Mr.
Cotton, will you be making an opening statement?
supports the State's claim that the trial court followed the
procedure that appellant requested. Appellant is, therefore,
estopped from complaining about the procedure. See Prystash v.
State, 3 S.W.3d 522, 530-32 (Tex.Cr.App. 1999), cert.
denied, 529 U.S. 1102 (2000) (party cannot invite error and
then complain about it on appeal). In addition, Article 26.14 does
not apply to death-penalty cases because a guilty plea to the jury
in a death-penalty case is sufficient to trigger the mandatory
procedures set out in Article 37.071, Tex. Code Crim. Proc., which
were followed in this case. See Williams v. State, 674
S.W.2d 315, 319 (Tex.Cr.App. 1984). Point of error five is
of the trial court is affirmed.
February 2, 2005