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Randy Ethan
HALPRIN
Classification: Murderer
Characteristics: Escape
- Member of the "Texas Seven"
#786259 on a 30 year sentence from
Tarrant County for 1 count of Injury to a Child. 12/13/2000
escaped from custody.
Summary of incident
On 12/24/2000, in Irving, Texas,
Halprin and six codefendants fatally shot a 31 year old white
male police officer while on escape from the TDCJ Connally Unit.
Co-defendants
G. Rivas, M. Rodriguez, D.
Newberry, L. Harper, J. Garcia, P. Murphy Jr.
Race
and Gender of Victim
White/Male
The Texas 7 was a group
of prisoners who escaped from the John Connally Unit near Kenedy,
Texas on December 13, 2000. They were apprehended January 21-23,
2001 as a direct result of the television show America's Most
Wanted.
The group was composed of the following Texas
state prisoners:
Joseph C. Garcia
Randy Ethan Halprin
Larry James Harper (deceased by suicide)
Donald Keith Newbury
Patrick Henry Murphy, Jr.
George Rivas (Ringleader)
Michael Anthony Rodriguez (executed in 2008)
Escape
On
December 13,
2000, the seven carried out an elaborate scheme and escaped
from the John B. Connally Unit, a maximum-security state prison
near the South Texas city of Kenedy.
At the time of the breakout, the reported
ringleader of the Texas Seven, 30-year-old George Rivas, was
serving 18 consecutive 15-to-life sentences. Michael Anthony
Rodriguez, 38, was serving a 99-to-life term, while Larry James
Harper, 37, Joseph Garcia and Patrick Henry Murphy, Jr., 39, were
all serving 50 year sentences. Donald Keith Newbury, the member
with the longest rap sheet of the group, was serving a 99-year
sentence, and the youngest member, Randy Halprin, 23, was serving
a 30-year sentence for injury to a child.
Using several well-planned ploys, the seven
convicts overpowered and restrained nine civilian maintenance
supervisors, four correctional officers and three uninvolved
inmates at approximately 11:20 a.m. The escape occurred during the
slowest period of the day when there would be less surveillance of
certain locations like the maintenance area — during lunch and at
count time. Most of these plans involved one of the offenders
calling someone over, while another hit the unsuspecting person on
the head from behind. Once the victim was subdued, the offenders
would remove some of his clothing, tie him up, gag him and place
him in an electrical room behind a locked door.
The attackers stole clothing, credit cards, and
identification from their victims. The group also impersonated
prison officers on the phone and created false stories to ward off
suspicion from authorities.
After that, three of the group made their way
to the back gate of the prison, some disguised in stolen civilian
clothing. They pretended to be there to install video monitors.
One guard at the gatehouse was subdued, and the trio raided the
guard tower and stole numerous weapons. Meanwhile, the four
offenders who stayed behind made calls to the prison tower guards
to distract them. They then stole a prison maintenance pick-up
truck, which they drove to the back gate of the prison, picked up
their cohorts, and drove away from the prison.
Crime spree
The white prison truck was found in the parking
lot of the Wal-Mart in Kenedy, Texas. The Texas 7 first went into
San Antonio right after breaking out of the complex. Realizing
that they were running out of funds, they robbed a Radio Shack in
Pearland, Texas the next day on
December 14
at around 2 AM. In order to bypass the otherwise-competent store
security, they entered an adjacent computer software store,
wherein they proceeded to knock down the flimsy sheetrock wall to
the other side. Once inside and undetected, they tethered the
Radio Shack safe to their truck, and literally dragged the large
safe outside of the building, causing damage to the parking lot
and pavement.
On
December 19,
four of the members checked into an Econo Lodge motel in Farmers
Branch, Texas (under assumed names), where they decided to rob an
Oshman's Sporting Goods in nearby Irving, Texas. On
December 24,
2000, they held up the store and stole 44 guns. A customer
standing outside of the store noticed the commotion inside and
called police. Irving police officer Aubrey Hawkins responded to
the call, arrived on the scene and was almost immediately ambushed;
his autopsy would show that he had sustained eleven gunshots and
his body had been run over by the fleeing gang.
After Hawkins' murder, a $100,000 reward was
offered to whoever could snare the group of criminals. The reward
would climb to $500,000 before the group was apprehended.
Capture and
Conviction
A friend of Wade Holder, the owner of the
Coachlight Motel and R.V. Park in Woodland Park, Colorado,
happened to watch the television program America's Most Wanted on
January 20,
2001 and told Wade that they were staying in his RV Park.
He believed that the Texas 7, who were being compared to Angel
Maturino Resendiz, were in his trailer park. When he confirmed
this, he reported the suspicious activities to local authorities
the next day on
January 21.
The El Paso County Sheriff's Department SWAT
team found Garcia, Rodriguez, and Rivas in a Jeep Cherokee in the
RV Park. Authorities moved in and captured them at a nearby gas
station. They then found Halprin and Harper in an RV; Halprin
surrendered peacefully, but Harper was found dead after a standoff;
he had shot himself in the chest and left temple with a pistol.
The surviving four members were taken into police custody.
On
January 23,
they received information on the whereabouts of the last two. They
were hiding out in a Holiday Inn in Colorado Springs, Colorado. A
deal brokered between the two, Newbury and Murphy, allowed them to
make live TV appearances before they were arrested.
In the early hours of
January 24, a
local KKTV television anchorman, Eric Singer, was taken into the
hotel where on camera he interviewed the two by telephone. Both of
them harshly denounced the criminal justice system in Texas, with
Newbury adding "the system is as corrupt as we are."
Authorities later found out that a woman named
Patsy Gomez conspired with a man named Raul Rodriguez, the father
of Michael Rodriguez, to help the Texas 7.
George Rivas was sentenced to death after being
extradited to Texas. Since then, the other five surviving members
of the Texas 7 have also been put on death row alongside Rivas.
While the other surviving members of the Texas
7 are awaiting final resolution of their appeals, Rodriguez
announced that he wished to forgo any further appeal (beyond the
appeal to the Texas Court of Criminal Appeals, mandatory in all
death-penalty cases). He underwent a court-ordered psychiatric
evaluation in January 2007, which concluded that he was mentally
competent to decide to forgo further appeals, and he was executed
on August 14, 2008, the first of the surviving members to be
executed.
In the Court
of Criminal Appeals of Texas
No. AP-74,721
Randy Ethan Halprin,
Appellant, v.
The State of Texas
On Direct
Appeal from Dallas County
Hervey, J.,
delivered the opinion for a unanimous Court.
O P I N I
O N
Appellant and six other prison inmates (the "Texas
Seven") escaped from prison in December 2000. These prison
escapees murdered a police officer during a robbery at an Oshman's
sporting goods store on Christmas Eve 2000. As a result of this
incident, appellant was charged with capital murder. A jury
convicted appellant of this offense, and the trial court sentenced
appellant to death pursuant to the jury's answers to the special
issues submitted at the punishment phase. Appellant raises
nineteen points of error. We affirm.
In point of
error one, appellant asserts that the trial court improperly
excluded mitigating evidence in violation of Article 37.071(f)(4),
Tex. Code Crim. Proc., which requires that the jury be instructed
that it "shall consider mitigating evidence to be evidence that a
juror might regard as reducing the defendant's moral
blameworthiness." In point of error two, appellant also asserts
that the trial court improperly excluded this mitigating evidence
in violation of the Eighth Amendment to the United States
Constitution.
In these
points of error, appellant claims that the trial court erroneously
excluded mitigating evidence in the form of a document offered as
defense exhibit 39. Appellant argues that this document "gave
weight and credence to part of [his] mitigation argument: that is,
he was not the leader of the Texas Seven; he was not a principal
in the decision to break out of prison; and, he was not a
principal in the decision to robb [sic] Oshmans."
The top of
this document states, "TDCJ Connally Unit." It ranks appellant the
lowest of the Texas Seven in leadership qualities. The identity of
the person who prepared the document is unknown.
(1) In relevant part, the document declares:
Ranking of
Offenders by Leadership/Personality Characteristics
After
conducting interviews with civilian workers, correctional officers,
and several inmates who worked closely with the escapees, a
consensus was developed of which offender was the leader and which
one may be the weakest. It was unanimous decision that RIVAS[
(2)] was the leader and the weakest was determined to be
[APPELLANT]. The following are ranked in order from highest (leadership)
to the lowest (follower).
. . . . . . .
. . .
7. [APPELLANT]-was
quiet and never exhibited leadership qualities. Was consistently
worried about whether his work was acceptable to the civilian
workers. Very submissive characteristic. This worrisome attitude
was seen to escalate a month before the escape. One civilian
worker speculated whether [APPELLANT] was undergoing some type of
depression.
The trial
court sustained the prosecution's hearsay objection to the
document each time appellant offered it into evidence. For example,
during the punishment phase of the trial, the trial court
sustained the prosecution's hearsay objection to the document when
appellant offered it under the business records exception to the
hearsay rule. (3)
[DEFENSE]:
Judge, out of the presence of the jury, I'll make a record as to
Defense Exhibit No. 39 that's been admitted for record purposes at
this point. We've talked about that quite a bit during the course
of the trial and I just want to state for the record that Defense
Exhibit 39 at the top says, it's ranking of offenders by
leadership slash personality characteristics. It says that "After
conducting interviews with civilian workers, correctional workers,
and several inmates that work closely with the escapees, a
consensus was developed of which offender was the leader and which
one may be the weakest" and talks about what the decision was. It
ranks the offenders from the highest to the lowest, starting with
Rivas as the highest and [appellant] as the lowest.
First of all,
Your Honor, this document is a part of the discovery that the
State gave to us. It has a distinctive number of 1550 on the
bottom, which indicates what number of document it is that the
State gave to us. This is not a document that was subpoenaed by
the defense. It was given to us by the State.
Because it
says that it's a summary that was compiled after talking to
several different people, civilian workers, correctional officers,
and inmates, it's not going to be the document of any one
particular person. It's going to be a TDC document.
Now, witness
Moczygemba, who was a TDC civilian worker who was taken down in
the escape, testified that he remembered they were asked to do
this type of ranking. Also another TDC worker who was taken down
in the escape, and that would be-that would be Mr. Burgess, also
seemed to remember being asked that sort of information. The
document clearly says "TDCJ Connally Unit" on the top of it.
Now,
yesterday [the defense] tried to offer that exhibit through the
witness who came from the Inspector General's Office, Elizabeth
Mullen. Ms. Mullen also testified that that appeared to be a TDCJ
document. It says TDCJ Connally Unit on the top. Ms. Mullen said
what they do, their job at the Inspector General's Office, is to
investigate all of these types of matters and compile documents,
reports, and such that are related to matters such as the escape.
And she says,
I just don't recognize this one. Now, she also testified that, you
know, she's told by her general counsel not to come here and, you
know, give anything to the defense that the defense may have
subpoenaed until she talks to the State first.
Judge, one
thing I did omit, Mr. S.O. Woods, a former TDCJ employee, said he
went to the Inspector General's Office, he reviewed the several
documents that they had, the boxes of documents that he had, and
he recalled seeing this document amongst those papers.
[TRIAL COURT]:
[Defense counsel], I don't believe that's an issue. It's a TDCJ
document. No question about its authenticity. That's not the issue.
The issue is that the conclusions on the entire document are all
from hearsay from unnamed sources. That's the problem with the
document.
[PROSECUTION]:
We didn't know who made it, either.
[TRIAL COURT]:
You don't know who the author is, you don't know where the
conclusions came from, you can't go back and find out any of the
source information that that ultimate opinion comes from.
So I have
reviewed 39, I understand your objections. No question about its
authenticity. It's simply not admissible because of hearsay.
[DEFENSE]:
Well, Judge, our objection would be-I mean, our premise would be
that you do have some evidence from Moczygemba and Bender where
the data came from, that it's a business record of TDCJ, and that
the proper sponsoring witness for that would be Ms. Mullen, except
that she says I just don't recognize this particular one.
So that puts
us in the position of having to rely on the State for our
sponsoring witness for the document, but having that sponsoring
witness say, well, I just don't recognize this particular one,
even though Mr. Woods says that he saw it amongst those papers in
the Inspector General's Office.
[TRIAL COURT]:
The record is clear as to the Court's ruling. Sheriff, find us a
jury.
[DEFENSE]:
Judge, just so I'm clear, is the Court saying that that document
offered through Ms. Mullen is objected to by the State as hearsay
and, therefore, the Court is not admitting it as a business
document made during the course and scope of the record keeping
duties of TDC?
[TRIAL COURT]:
It may be a business record, but it's all hearsay.
We find that
the trial court did not abuse its discretion to decide that the
document did not meet the business records exception to the
hearsay rule. There is no evidence showing who prepared the
document or whether it is a record of regularly conducted activity.
In addition, the record also reflects that appellant presented
from other sources a significant amount of mitigating evidence
that was cumulative of the mitigating evidence contained in the
document. A TDCJ civilian employee (Moczygemba) testified that he
would rank appellant's intelligence "at the very bottom" of the
Texas Seven. (4) Another TDCJ
civilian employee (Burgess) testified that appellant was not "a
leader type." (5) Appellant also
testified at length that he was a follower and not a leader and
that his participation in the victim's murder was minimal.
Appellant's counsel also argued appellant's lack of intelligence
and leadership qualities to the jury during closing jury arguments
at the punishment phase. (6) Under
these circumstances, any error in excluding the document was
harmless (even beyond a reasonable doubt). Cf. Leday v. State,
983 S.W.2d 713, 718 (Tex.Cr.App. 1998) (overruling objection to
evidence is not reversible error when other such evidence is
admitted). Points of error one and two are overruled.
In points of
error three through ten, fourteen and seventeen, appellant claims
that the trial court erroneously denied his challenges for cause
to ten veniremembers during the voir dire process to select the
primary jury panel. The record, however, reflects that appellant
had one peremptory challenge remaining when he accepted the
twelfth juror (Dalton).
[TRIAL COURT]:
Back in open court. In the presence of [appellant], what says [appellant]?
[DEFENSE]:
Judge, I need to put something on the record, if I may.
[Appellant],
Mr. Ashford and I have advised you that we have burned our 15
strikes and the Court has granted us one additional strike. And we
discussed with you that we can burn a strike, if you wish, on Mr.
Dalton, or, if we do burn a strike for some particular reason, you
can always ask the Court for an additional strike somewhere down
the line.
There's no
guarantee the Court would give us a strike and we've discussed
those issues with you; is that correct?
[APPELLANT]:
Yes.
[DEFENSE]:
In understanding those issues and understanding that you have one
strike left, you have advised Mr. Ashford and myself that Mr.
Dalton is acceptable as a juror to you; is that correct?
[APPELLANT]:
That's correct.
[DEFENSE]:
You understand that some people might argue that by giving up one
of your strikes, even though it's an additional strike the Court
has given us, that somehow you are waiving some error. But I have
explained to you, have I not, that what the Court will look at is
the twelve jurors that you have in the box to determine whether or
not you have been harmed somehow, even if the Court has previously
made and denied an erroneous charge by the defense that would be
error, the Court or the Court of Appeals, Supreme Court of the
United States, would look to see whether you were harmed by that
error and in ascertaining that, look and see which twelve
individuals you have in the box. And I have explained that to you?
[APPELLANT]:
Yes, sir.
[DEFENSE]:
And you understand there's some trial strategy involved here in
accepting jurors as well and you are aware of the trial strategy
of burning strikes and some of the other matters that we have been
engaged in in the last six weeks; is that correct?
[APPELLANT]: That's correct.
[DEFENSE]: And understanding all of that, it's your
desire to accept Mr. Dalton; is that right?
[APPELLANT]:
That's correct.
[DEFENSE]:
We accept Mr. Dalton as juror No. 12.
Appellant,
therefore, suffered no harm from any error in the trial court's
denial of these ten challenges for cause. See Johnson v. State,
43 S.W.3d 1, 7 (Tex.Cr.App. 2001) (to show harm from erroneous
denial of defense challenge for cause, defendant must show, among
other things, that he exhausted all of his peremptory challenges).
Points of error three through ten, fourteen and seventeen are
overruled.
In points of
error eleven through thirteen, appellant claims that the trial
court erroneously denied his challenges for cause to three
veniremembers during the alternate juror selection process which
was separate and distinct from the process to select the primary
panel. See Article 33.011(a), Tex. Code Crim. Proc.;
Article 35.15(d), Tex. Code Crim. Proc. Appellant, however, has
not shown that any of the two alternate jurors (Hoyer and
Railsback) participated in any of the jury deliberations in his
case. Appellant, therefore, suffered no harm from any error in the
trial court's denial of these three challenges for cause. See
Cooks v. State, 844 S.W.2d 697, 721-22 (Tex.Cr.App.),
cert. denied, 509 U.S. 927 (1993). Points of error eleven
through thirteen are overruled.
In points of
error fifteen, sixteen, eighteen and nineteen, appellant claims
that the trial court allowed the prosecution to ask four
veniremembers improper commitment questions during the process to
select the primary jury panel. (7)
In point of error fifteen, appellant claims that the following was
an improper commitment question from the prosecution to
veniremember Russell.
Q. [PROSECUTION]:
Let me give you some other examples of some people say it could be
or could not be. If a person knows right from wrong, so they're
not insane, but, let's say, they may have a mental illness, a
mental birth defect, maybe they're mentally retarded. There's been
a lot in the media lately about the execution of someone who is
mentally retarded. And you can see how Special Issue No. 3 [the
mitigating evidence special issue] could take that into account,
that yeah, they're guilty, they killed the police officer. Yeah,
they're probably going to be dangerous. They intended for someone
to die. But their makeup, they've been that way since birth
through no fault of their own. You can see the documentation if
someone is mentally retarded.
People say
irregardless of those other decisions, that's why we get to No. 3,
that could be, maybe to some people, mitigating.
[DEFENSE]:
Excuse me, Mr. D'Amore. Your Honor, because of the legal nature of
the Supreme Court rulings involving that recently, we object to
that as an improper commitment question under Standifer [sic].
The
prosecution's question did not attempt to bind the veniremember to
resolve or refrain from resolving an issue (i.e., the mitigating
evidence special issue) on the basis of one or more facts
contained in the question. See Standefer v. State, 59 S.W.3d
177, 180 (Tex.Cr.App. 2001) (question is a commitment question "if
one or more of the possible answers is that the prospective juror
would resolve or refrain from resolving an issue in the case on
the basis of one or more facts contained in the question"). The
totality of the voir dire record reflects that the prosecution
explained that the veniremember should have an open mind and
consider all of the evidence in answering the mitigating evidence
special issue. This was not an improper commitment question.
See Standefer, 59 S.W.3d at 180-82.
In point of
error sixteen, appellant claims that the following was an improper
commitment question from the prosecution to veniremember O'Brien.
Q. [PROSECUTION]:
That by itself right there, if we just stop for a minute, I can
take a gun out and shoot my partner here ten times and laugh about
it and that's murder. It's not capital murder, but it's an
intentional murder. I could get anywhere from five years in the
penitentiary at the low end to 99 years or life at the high end or
anywhere in between. Okay? That's for intentional murder.[
(9)]
Even if this
is a question, appellant did not object to it. He, therefore,
failed to preserve any appellate claim that it was an improper
commitment question. See Tex. R. App. Proc. 33.1(a).
Appellant
also claims in point of error sixteen that the following were
improper commitment questions from the prosecution to veniremember
O'Brien.
Q. [PROSECUTION]:
You know, it's asked sometimes that you are telling me, Ms.
O'Brien, that you could give somebody as little as five years in
the penitentiary for intentional murder. See? That's how it's
phrased. Most people think of murder they think of the example I
gave you, shooting somebody horribly, a very vicious crime. Of
course, it could be.
[DEFENSE]:
Excuse me, Your Honor, but we're going to object as to any
specific example not contained in the indictment, not reflected by
allegations contained in the indictment so as to qualify a juror
as to the range of punishment. We will object to it, violation of
Standifer [sic].
[TRIAL COURT]:
Overruled.
Q. [PROSECUTION]:
Different type of intentional murder could be the unplugging of a
life support machine in the hospital of a family member out of
love instead. Intentional murder, did it on purpose, knew they
were going to die, but you did it out of love so that person
wouldn't be in pain.
[DEFENSE]:
Again, Judge, we renew our objection in that regard.
[TRIAL COURT]:
Overruled.
Assuming
that appellant's objections were sufficient to alert the trial
court to a claim that the prosecution's questions were improper
commitment questions, we decide that the prosecution's questions
were not improper commitment questions. They did not attempt to
bind the veniremember to resolve or refrain from resolving an
issue (i.e., the minimum punishment for an intentional murder) on
the basis of one or more facts contained in the questions. See
Standefer, 59 S.W.3d at 180.
Appellant
also claims in point of error sixteen that the following was an
improper commitment question from the prosecution to veniremember
O'Brien.
Q. [PROSECUTION]:
Go down the street, kill a neighbor out in the front yard.
Intentional murder, not self-defense, not an accident. Then you
find out that neighbor gave drugs to that person's child and
killed him, drug dealer, that type of a situation. You see, it
could encompass a wide variety of the different situations what
intentional murder is.
I use those
as examples not to commit you in any way, but to kind of have you
see intentional murder can encompass a lot of different situations.
Does that make sense?
Appellant
did not object to this question. He, therefore, failed to preserve
any appellate claim that it was an improper commitment question.
See Rule 33.1(a).
In point of
error eighteen, appellant claims that the following were improper
commitment questions from the prosecution to veniremember Hamblin.
Q. [PROSECUTION]:
Now, of course, that, I think that wide range of punishment
recognizes the wide range of circumstances that murder can be
committed under. Maybe a situation where I turn to Mr. D'Amore, I
don't like his tie today, and I shoot him ten times in the head,
and, you know, he falls down and, you know, I dance around all
happy about it. It's a brutal, heinous, intentional murder.
There's nothing really plus, it's not a capital murder. You know,
it could be something like that, that's an intentional murder. Or
it could be an aged spouse, okay, who pulls the life support plug-
[DEFENSE]:
Excuse me, Mr. Wirskye. We will object, Your Honor. That's clearly
not something encompassed within the allegations contained in the
indictment. It's an improper example to try to qualify the juror,
potential juror, on the minimum range of punishment. We also think
it's a violation of Standifer [sic], it's a commitment question,
so we kindly object.
[TRIAL COURT]:
Be denied.
Q. Obviously,
we can't commit you to what you would do in certain instances. I
just want to kind of give you some examples. A mercy killing, some
people call it. You know, an aged spouse pulls the life support
plug to put their longtime spouse out of misery. That would also
be an intentional murder.
[DEFENSE]:
We would also object, that certainly would also be aiding suicide.
We're going to object to that, but certainly it wouldn't even be
in the range of a murder offense, so we object once again that
it's an improper example to be given.
Assuming
that appellant's objections were sufficient to alert the trial
court to a claim that the prosecution's questions were improper
commitment questions, we decide that the prosecution's questions
were not improper commitment questions. They did not attempt to
bind the veniremember to resolve or refrain from resolving an
issue (i.e., the minimum punishment for an intentional murder) on
the basis of one or more facts contained in the questions. See
Standefer, 59 S.W.3d at 180.
In point of
error nineteen, appellant claims that the following was an
improper commitment question from the prosecution to veniremember
McGinnis.
Q. [PROSECUTION]:
You know, you could have a really heinous murder, just a regular
murder, pull a gun out and kill Mr. D'Amore because I don't like
his tie. You may want to give me life for that. And you could have
a knowing or intentional murder. An elderly spouse pulls the plug
on life support for a long-time spouse.
[DEFENSE]:
We object to that example, Judge. It's a violation of Standifer
[sic] and it doesn't qualify here anyway.
[TRIAL COURT]:
Be overruled. Do you understand he's just giving you examples, Mr.
McGinnis?
A. [MCGINNIS]:
I understand that.
[TRIAL COURT]:
I figured you did. We can't talk about the facts of this case, so
we just give hypotheticals. Does that make sense to you.
A. Yes, sir.
The
prosecution's question did not attempt to bind the veniremember to
resolve or refrain from resolving an issue (i.e., the minimum
punishment for an intentional murder) on the basis of one or more
facts contained in the question. See Standefer, 59 S.W.3d
at 180. It was not an improper commitment question.
Finally, any error in the trial court permitting
the prosecution to ask these four veniremembers these questions
was harmless. Our review of the record indicates that none of
these four veniremembers sat on appellant's jury because appellant
exercised a peremptory challenge on each one of them, and that
appellant had one peremptory challenge remaining after selection
of the primary jury panel. Cf. Anson, 959 S.W.2d at 204.
Points of error fifteen, sixteen, eighteen and nineteen are
overruled.
The judgment of the trial court is affirmed.
Hervey, J.
Delivered:
June 29, 2005
Publish
*****
1. It appears that this
document was prepared just after the escape as an aid to law
enforcement to apprehend the escapees.
2. Rivas was one of the
Texas Seven escapees. He was also convicted of capital murder and
sentenced to death for his role in the murder of the police
officer during the robbery at the Oshman's store. This Court
affirmed this conviction and sentence on direct appeal See
Rivas v. State, No. 74,143 (Tex.Cr.App. No. 74,143, delivered
June 23, 2004) (not designated for publication).
3. Tex. R. Evid. 803(6)
provides that "records of regularly conducted activity" are not
excluded by the hearsay rule. Rule 803(6) defines "records of
regularly conducted activity" as:
A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions,
or diagnoses, made at or near the time by, or from information,
transmitted by, a person with knowledge, if kept in the course of
a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report,
record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness, or by affidavit that
complies with Rule 902(10), unless the source of information or
the method or circumstances of preparation indicate lack of
trustworthiness. "Business" as used in this paragraph includes any
and every kind of regular organized activity whether conducted for
profit or not.
Q. [DEFENSE]:
If I asked you based on your opinion to rank [appellant] in terms
of intelligence with all the rest of [the Texas Seven] I just
asked you about, what would you say?
A. [MOCZYGEMBA]:
He was right at the very bottom.
Q. Okay. And
I'll ask you again, did TDC ask you that type of information? Did
they ask you to do that type of qualification?
A. They
basically asked us to give them their-how would you say, their
physical and mental characteristics.
Q. Okay. Did
they use terms such as leadership?
A. Oh, not
really, not that I can recall.
Q. But no
doubt in your mind that Rivas was the leader?
A. Yes, sir.
Q. And those
were-that was consistent with his intelligence and his character
as you knew him?
Who does [appellant] meet? He meets George
Rivas. Now, there's some indication by [the prosecution] somehow
that he-and Mr. Rivas had gotten [appellant] and, you know,
selected him somehow. You know what [appellant] is? He's a
follower. No leadership qualities. Everybody down at TDC has
figured that out. Burgess said he's dumb as a bag of rocks. Tell
him what to do. And you look during the course of the scheme of
the conduct. Is he one of the guys with the shank? No. He's the
guy with the mop. What's he doing? He's not even engaging in any
independent thought through the course of the escape. He's waiting
until he's being told to do something and then he does it. And
that comes from their witnesses.
7. Appellant does not state
in his brief whether he challenged these veniremembers for cause,
or whether he exercised peremptory challenges on them, or whether
any of them actually sat on his jury. Cf. Anson v. State,
959 S.W.2d 203, 204 (Tex.Cr.App. 1997), cert. dism'd, 525
U.S. 924 (1998) (discussing harm analysis to apply to trial
court's refusal to allow proper questions to individual
veniremembers).
8. After the trial court
overruled appellant's objection, the following exchange occurred.
Q. [PROSECUTION]:
Some people might view it as mitigating. That's the only thing.
I'm not trying to commit you one way or the other. I'm just asking
do you see how that could play a part in No. 3.
A. [RUSSELL]:
Yes.
Q. The
bottom line question with Special Issue No. 3 is that you have to
have an open mind to it. You have to be able to look at the
evidence and see if there's something mitigating there, and then
is it sufficient in your mind to give them a life sentence,
whether it's because they're mentally retarded or something else
about them, some reason why the crime happened.
I mean,
again, we can sit here all day long and talk about mitigating
reasons. But the bottom line is, even if you can't think of
something today, that you're not closing it off, you're not
closing off giving somebody a life sentence.
So, that's what I need to know, and I think
everyone here needs to know whether or not you are the type of
person that can keep an open mind on No. 3, even though you've
found him guilty of killing a police officer, even though you said
he's probably going to be dangerous. Because that's the context in
how this question is asked. The law says you must, because the
only way you get to No. 3, you made those decisions. So, when you
get there, you still have to have an open mind to a life sentence,
depending on the facts of the case.
9. The voir dire record
reflects that immediately after this the prosecution continued to
explain:
Q. [PROSECUTION]:
I guess you could say, when you find someone guilty of intentional
murder, there may be, what, 94, 95, 96, separate verdicts you
could do, anywhere from five years up to 99 years or life. See how
that works?
A. [O'BRIEN]:
Uh-huh.
Q. What the
law says about that is that we can't commit you today on what
you'll do in any particular situation, but what we must know, and
both sides are entitled to know, is that your mind would be open
to that full range of punishment, depending on the facts. Maybe
depending on as to why I killed him or as a different situation
does a person, the motive of why it happened, or the reason why it
happened. It's not legally justified, but maybe there's some other
reason why it happened.
All you have
to be able to do to satisfy the law is to say you'll have an open
mind, wait to hear the evidence, and then decide what the proper
punishment is. And that makes sense. You don't want to commit to
something before you know the full story. Does that make sense?
A. Sure.
Q. Do you
think you could do that?
A. Yes.
10. The voir dire record
reflects that immediately after this the prosecution continued to
explain:
Q. [PROSECUTION]:
So, that's why the law says you have to wait and hear the evidence,
hear about the person, and then decide what the proper punishment
is. My question to you in an intentional murder case if you are a
juror, if you find someone guilty of intentional murder, could you
then decide what the appropriate punishment is with your mind open
from five years to 99 years or life, just depending on the facts?
A. [O'BRIEN]:
I think so.
Q. So you
could, although you don't have to think of a situation today, your
mind is open to giving someone the minimum five years for an
intentional murder, depending on the facts and if you thought it
was the right thing to do?
A. You mean,
if I thought the sentence was the right thing to do?
Q. Right.
A. Yes.
11. The voir dire record
reflects that immediately after this the prosecution continued to
explain:
Q. [PROSECUTION]:
It encompasses a wide range. My next door neighbor gives my little
daughter drugs, and I get mad about it, and I go out in the front
yard and shoot him dead. That's intentional murder. The jury may
want to find that pretty mitigating, you know.
But, anyway,
the bottom line is to all of this, as a potential juror you have
to be able to keep an open mind to that full range of punishment,
five all the way up to 99 years or life.
Do you think
that you would have a hesitation in keeping that open mind to that
entire range of punishment.
