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In the Court
of Criminal Appeals of Texas
No. AP-74,344
RICHARD
ALLEN MASTERSON, Appellant
v.
THE STATE OF TEXAS
On
Direct Appeal From Harris County
Keller, P.J., delivered the
opinion of the unanimous Court.
O P I N I O N
Appellant was convicted of a capital murder
(1) committed on
January 27, 2001. Pursuant to the jury's answers to the special
issues set forth in Texas Code of Criminal Procedure, Article
37.071, ??2(b) and 2(e), the trial judge sentenced appellant to
death.
(2) Direct appeal
to this Court is automatic.
(3) Appellant
raises eight points of error. We will
affirm.
I. GUILT
A. Appellant's recorded confession
In points of
error two and three, appellant complains about the admission into
evidence of a tape-recorded confession taken from him by a Texas
police officer while appellant was in custody in Florida. In point
of error two, he complains that his confession was induced by a
promise of leniency for his nephew. In point of error three, he
complains that his confession was taken after he invoked his right
to counsel.
(4)
1. Background
After the
victim was murdered, appellant drove the victim's car to Georgia.
He left that car with relatives and continued on to Florida, where
he was arrested after stealing another car. In the meantime,
appellant's nephew was arrested for possession of cocaine left by
appellant in the victim's car.
Houston
police officer David Null interviewed appellant at the Marion
County, Florida jail. Null testified that he advised appellant of
all the warnings required by Article 38.22. After each warning, he
asked appellant whether he understood the warning, and appellant
answered affirmatively each time. Null then asked whether
appellant wished to give up those rights, and appellant stated
that "he wanted to clear things up." Null testified that he never
made any promises to appellant, never offered appellant anything
in exchange for talking about the murder case, and never
threatened appellant or any member of appellant's family.
Regarding appellant's nephew, Null testified that he was aware
that the nephew had been caught in a stolen car, but did not offer
anything to the nephew in exchange for a statement in the case.
Null said that appellant did say that there had been dope in the
car and that the dope belonged to appellant and not to the nephew.
When asked whether he offered to help the nephew in any way, Null
testified: "I told him [appellant] that if the dope was his and he
wanted to admit the dope was his that I would let the people know
that he was admitting that the dope, it was his dope." Null also
testified that appellant never asked for an attorney.
Appellant
testified that, when Null said he wanted to ask some questions, "I
asked him if I needed a lawyer." According to appellant, Null
ignored his question. Appellant also testified that he had earlier
asked a magistrate at extradition proceedings "if I could get a
lawyer." With regard to his nephew, appellant testified that he
told Null about his nephew's situation and asked "if they could
get that took care of." According to appellant, Null replied that
"he'd see what he could do." Appellant testified that he
understood that answer to mean "[t]hat he, if I cooperated with
him, he would help me out."
At the end
of the suppression hearing, the trial court found:
There is no
credible evidence to indicate that the defendant was ever promised
anything to make this statement. The credible evidence shows that
the defendant never asked for a lawyer, that he waived his rights
and freely and voluntarily gave the statement to Officer Null.
2. Analysis
In reviewing a trial court's ruling on a motion to suppress, the
appellate court should afford almost total deference to the trial
court's determination of the historical facts, especially when
that determination involves an evaluation of the credibility and
demeanor of witnesses.
(5) With respect
to both of appellant's claims, the trial court was free to believe
Officer Null's testimony and disbelieve appellant's testimony.
With regard to whether an impermissible promise was made, Officer
Null stated that he simply told appellant, if the drugs belonged
to him and he wanted to admit to that, Null would pass along that
admission. In Martinez v. State,
(6) we addressed
a similar situation. In that case, the police detective testified
that he told the defendant that he needed to know who the drugs
belonged to, and from that the defendant "could have gathered"
that his father and brother would not be charged if the defendant
"accepted responsibility."
(7) We held that
"the evidence supports the implied finding that no positive
promise was ever made by the detective" to the defendant.
(8) In the
present case, the police officer's statements were even more
circumspect because he simply indicated that he was willing to
pass along any information the defendant wanted to convey. No
positive promise was made. Moreover, the evidence suggests that
appellant initiated the discussion regarding helping his nephew. "Having
cast himself in the role of entrepreneur, [appellant] cannot
expect an appellate court to find implied 'promises' in official
responses (to his overtures) that are ambiguous at best."
(9)
Regarding appellant's claim that he requested counsel, the trial
court was within its discretion to believe Null's testimony that
no counsel was requested. Appellant contends, however, that the
trial court had no discretion to disbelieve appellant's testimony
about requesting counsel before the magistrate because the State
never controverted that testimony. But the trial court has
discretion to disbelieve testimony even if it is not controverted.
(10) The trial
court did in fact discount appellant's testimony and was within
its discretion to do so. Points of error two and three are
overruled.
B. Lesser-included offense
In point of
error one, appellant contends that the trial court erred in
refusing to submit his requested instruction regarding the lesser-included
offense of criminally negligent homicide. At trial, appellant
testified that he met the victim at a "hustler bar," went home
with him, and engaged in consensual sexual conduct with him.
According to appellant, the victim requested that appellant
perform a "sleeper hold" to enhance the quality of the victim's
sexual experience. Although the "sleeper hold" resulted in the
victim's death, appellant testified that this result was
unintended.
Assuming, without deciding, that appellant was entitled to the
requested instruction, we find any error to be harmless. The jury
was instructed on the lesser-included offense of manslaughter.
(11) We held in
Saunders v. State that the jury's failure to find an
intervening lesser-included offense (one that is between the
requested lesser offense and the offense charged) may, in
appropriate circumstances, render a failure to submit the
requested lesser offense harmless.
(12) This is so
because the harm from denying a lesser offense instruction stems
from the potential to place the jury in the dilemma of convicting
for a greater offense in which the jury has reasonable doubt or
releasing entirely from criminal liability a person the jury is
convinced is a wrongdoer.
(13) The
intervening lesser offense is an available compromise, giving the
jury the ability to hold the wrongdoer accountable without having
to find him guilty of the charged (greater) offense.
(14) While the
existence of an instruction regarding an intervening lesser
offense (such as manslaughter interposed between murder and
criminally negligent homicide) does not automatically foreclose
harm - because in some circmstances that intervening lesser
offense may be the least plausible theory under the evidence
(15) - a court
can conclude that the intervening offense instruction renders the
error harmless if the jury's rejection of that offense indicates
that the jury legitimately believed that the defendant was guilty
of the greater, charged offense.
(16)
In Saunders, the defendant was charged with murder by
squeezing a baby's head with intent to cause serious bodily injury.
(17) The trial
court denied the defendant's request to include in the jury charge
an instruction on criminally negligent homicide but did include an
instruction on "involuntary manslaughter"
(18) (now known
simply as "manslaughter").
(19) The basic
difference between (involuntary) manslaughter and criminally
negligent homicide was (and is) that "in the former, that actor
recognizes the risk of death and consciously disregards it, while
in the latter he is not, but ought to be, aware of the risk that
death will result from his conduct."
(20) We found
significant evidence in the record that the defendant was aware of
the risk of death,
(21) and
therefore, manslaughter was a realistic option for the jury.
(22) Consequently,
the jury's conviction of the defendant for murder, despite the
availability of involuntary manslaughter, indicated that the jury
did in fact believe that the defendant harbored the specific
intent required for the charged offense.
(23)
Like the
defendant in Saunders, appellant was denied an
instruction on criminally negligent homicide but received an
instruction on manslaughter. In addition, the record in the
present case also contains significant evidence of appellant's
awareness of the risk of death. On the witness stand, appellant
testified that he initially refused the victim's request to apply
a "sleeper hold" because doing so "scares" him. He testified that
he had performed such a hold before, and he testified that he knew
just by looking at the victim after he performed the "sleeper hold"
that the victim was dead. Under the circumstances, if the jury
truly believed that appellant performed a "sleeper hold" as a
sexual maneuver and did not intend to kill the victim, the jury
could easily have given effect to that belief by acquitting
appellant of capital murder and convicting him of manslaughter.
That the jury chose not to do so shows that it did not believe
appellant's story. We conclude that any error was harmless. Point
of error one is overruled.
II. PUNISHMENT
A. Sufficiency of the evidence - future dangerousness
In point of error five, appellant contends that the evidence is
legally insufficient to support the jury's answer to the "future
dangerousness" special issue
(24) because, due
to his testimony that he would attempt to commit criminal acts of
violence in the future, prison authorities would not allow him to
do so in prison and parole authorities would refuse to ever
authorize his release.
During
direct examination at the punishment phase of trial, appellant
testified:
[L]ike [the
prosecutor] told 'em from the beginning when they were picking the
jury, they have to answer two questions, am I going to be a future
danger? Am I going to protect myself by any means necessary? Yes I
am. That makes me a future danger, yes, I am. Second issue, is
there any mitigating circumstance. I don't think so. Everybody
lives and dies by the choices that they make. None of my family
out there could control what I did. I did what I did because I
wanted to do it, not because they made me do it, or because I got
my ass whooped. I got my ass whooped because I deserved it a lot
of times. Sometimes I got my ass whooped because I didn't deserve
it but most of the time I - I did something wrong, I got punished
for it. So whatever your decision is, I accept that. You found me
guilty, you must believe I'm guilty. And if you send me to prison,
for life, the chances are, in the Texas Department of Corrections
the chances are I'm going to have to defend myself, and like I
said, I will defend myself, whether it's against a guard or inmate
or anybody else by any means necessary. If that means a guard puts
his hands on me I'm going to put my hands on him. If a[n] inmate
comes up to me with a knife and tries to stab me, I'm going to
stab him or do whatever it takes to save my life from him.
Later, on
cross-examination, the following transpired:
Q. You
mentioned that you wanted - you think the jury should answer the
special issues in such a way that you get the death penalty, right?
A. If
they're following the law, yes.
Q. They have
to, right?
A. Yes, if
they're following the law, yes.
Q. Because
it's clear you're a future danger, right?
A. If it's -
if me protecting myself or my property, yes, I'm a future danger.
Q. And you
would do whatever it takes, be it hurt another inmate, hurt
another guard, to prove that, right?
A. Not
necessarily, but if that arises, yes I will, and I'm sure within
40 years, it will arise sometimes.
Q. You're
positive there's no way you could stay in prison probably even for
a year without getting violent again, right?
A. Probably
not. Probably not even a month.
In his brief,
appellant argues that the evidence clearly showed that he is a
danger to both prison and free society:
From the
evidence of the primary offense against Shane Honeycutt, the
offense against Steven and evidence at punishment about
Appellant's commission of threats and violence against others in
the free world, the jury must have drawn the conclusion that
Appellant presented a real danger, a threat to people in free
society. The testimony of jail personnel about Appellant's violent
conduct toward others in the county jail, including fighting with
other inmates and including verbal threats to one deputy, about
his membership in the Aryan Brotherhood gang (a gang which was
also present in the Texas prison system, according to a deputy
witness) and his readiness to defend the Brotherhood against "disrespect"
with violence. Together with Appellant's own testimony that he
would continue to commit criminal acts of violence in prison
whenever he deemed it necessary (which he told the prosecutor he
believed would probably occur "within a month") was certainly
evidence relevant to the jury's decision about the likelihood of
Appellant's being a continuing threat to prison society.
Appellant's feelings of remorse, or even regret, for any of his
violence toward others were remarkable for their absence; for
example, Officer Null, who took Appellant's tape recorded
statement, testified at guilt that Appellant told him that
Honeycutt's death "didn't really matter to him, he didn't feel any
remorse about it, he wasn't upset about it because he didn't know
him - and it just didn't matter." At punishment, Deputy Urick said
when he told Appellant in the jail that he would write him up for
refusal to follow Urick's order to pick up his food tray,
Appellant told him he would "choke you like I choke my victims."
In short, the evidence was strongly suggestive that Appellant
would be, and would strive to be a continuing threat both in
prison and in free society, were he ever to get there.
Appellant
argues that, given the obvious threat he poses, prison officials
would place him in lockdown to protect guards and other inmates
from him. In addition, appellant argues that the parole
authorities would never parole such a dangerous person. He
concludes that he does not in fact constitute a future danger
because the authorities will act to neutralize his ability to
threaten others.
Appellant's
argument appears to be that he is so dangerous that he is not
dangerous. His contention is ingenious but unpersuasive. If
accepted, it would stand the capital punishment scheme on its head,
giving relief to the most dangerous offenders. We will not
speculate, for legal sufficiency purposes, about the effectiveness
of the prison and parole authorities' methods of protecting
society from those who are intent on committing future criminal
acts of violence. Point of error five is overruled.
B. Order of closing argument
In point of
error four, appellant contends that the trial court erred in
refusing his request to give the concluding argument in punishment
on the mitigation special issue. Appellant contends that Article
36.07 does not govern capital cases, that the trial court has
discretion to change the order of arguments in a capital case,
that the State has no burden of proof on the mitigation issue and
any burden that does exist is on the defendant, and that his
constitutional rights were violated by the "psychological
advantage" the State had "in making the last impression on the
jury" in a death penalty case.
Article 36.07 provides: "The order of argument may be regulated by
the presiding judge; but the State's counsel shall have the right
to make the concluding address to the jury." Appellant contends
that Article 36.07 does not apply to capital cases. His only
reason for so concluding is the assertion that the procedure in
capital cases is controlled by Article 37.071, and that article is
silent as to the order of argument. However, the fact that Article
37.071 controls many aspects of capital punishment proceedings is
not, by itself, sufficient to reject the applicability of a
statute that, on its face, appears to apply to all criminal trials.
And in fact, we have previously held that Article 36.07 applies to
capital cases, including the punishment phase of a capital murder
trial.
(25) The State
suggests that Article 36.07 may be preempted by the following
sentence in Article 37.071: "The state and the defendant or
defendant's counsel shall be permitted to present argument for or
against a sentence of death."
(26) But that
provision covers only the content of argument: the parties are
permitted to explicitly argue for or against a "death sentence"
rather than simply arguing the special issues. That situation is
unique to death penalty cases, and thus, is understandably
included in Article 37.071. Nothing in the Code of Criminal
Procedure limits the application of Article 36.07 to non-capital
cases and we see no reason to do so.
Appellant argues that, in civil cases, the final argument falls to
the shoulders of whoever has the burden of proof. But we have held
that Article 36.07, not the civil rules, applies to criminal
cases.
(27) In
Martinez v. State, we rejected the defendant's claim that the
issue of insanity gave him the right to open and close argument,
even though insanity was the only contested issue in the case and
one on which the defendant carried the burden of proof.
(28) We held that
the trial court's refusal to permit the defendant to open and
close under those circumstances did not deprive the defendant of
any consititutional right.
(29) In a capital
case, we have likewise rejected a defendant's claim that a trial
court's failure to allow defense counsel to rebut the prosecutor's
arguments rendered his trial fundamentally unfair.
(30) We see
nothing about the mitigation special issue, which imposes a burden
of proof on neither party,
(31) that
distinguishes appellant's situation from our prior holdings. Point
of error four is overruled.
C. Constitutionality of the death penalty
1. Future dangerousness issue
In point of error six, appellant contends that the future
dangerousness issue is unconstitutional because the issue is not
susceptible to proof beyond a reasonable doubt and cannot be
applied fairly by the jury. He contends that a jury will tolerate
no risk in determining whether the defendant constitutes a future
danger to society. We have previously rejected this claim.
(32)
2. Failure to inform jurors of effect of hung jury
In points of error seven and eight, appellant contends that his
Eighth Amendment right against cruel and unusual punishments was
violated by the trial court's refusal to inform the jurors that a
failure to arrive at a unanimous verdict in favor of the State on
the punishment issues would result in a life sentence. He
acknowledges that the failure to so inform the jury is sanctioned
by statute and challenges the constitutionality of the part of
Article 37.071 that is often called the "12-10" rule. We have
previously rejected such arguments.
(33) Appellant
relies upon the dissent in Jones v. United States,
(34) but the
dissent is just that - a dissent. Relying upon the majority
opinion in Jones, we have recognized that the Supreme
Court has found that the Eighth Amendment does not require that
jurors be informed of the effect of a failure to reach unanimous
agreement on the punishment issues.
(35) Points of
error seven and eight are overruled.
The judgment
of the trial court is affirmed.
KELLER,
Presiding Judge
Date
delivered: February 2, 2005
Publish
*****
1. TEX. PEN. CODE ?19.03(a).
2. Art. 37.071, ?2(g).
Unless otherwise indicated, all references to Articles are to the
Texas Code of Criminal Procedure.
3. Art. 37.071, ?2(h).
4. Appellant argued these
two points of error together in his brief, and we address them
jointly here.
5. Maldonado v. State,
998 S.W.2d 239, 247 (Tex. Crim. App. 1999)(citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) and applying
its standard to a "promise" claim); Ripkowski v. State,
61 S.W.3d 378, 381-382 (Tex. Crim. App. 2001), cert. denied,
539 U.S. 916 (2003)(applying Guzman standard to
Miranda claims).
6. 127 S.W.3d 792 (Tex. Crim.
App. 2004).
7. Id. at 793.
8. Id. at 795.
9. Johnson v. State,
68 S.W.3d 644, 654-655 (Tex. Crim. App. 2002)(quoting
Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App.
1997), cert. denied, 525 U.S. 978 (1998))(bracketed
material inserted, other brackets deleted).
10. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
11. The jury was also
instructed on the lesser-included offenses of murder, robbery, and
aggravated assault.
12. 913 S.W.2d 564, 572 (Tex.
Crim. App. 1995).
13. Id.
14. Id.
15. Id. at 573.
16. Id. at 574.
17. Id. at 566.
18. Id. at 565-566.
19. See Acts 1993, 73rd
Leg., ch. 900, ?1.01.
20. Saunders, 913 S.W.2d at 565.
21. Id. at 573-574.
22. Id. at 573.
23. Id. at 574.
24. The issue asks: "whether
there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to
society." Art. 37.071, ?2(b)(1).
25. Norris v. State,
902 S.W.2d 428, 442 (Tex. Crim. App.), cert. denied, 516
U.S. 890 (1995); see also Cherry v. State, 488 S.W.2d
744, 757 (Tex. Crim. App. 1972)(opinion on original submission),
cert. denied, 411 U.S. 909 (1973).
26. Art. 37.071, ?2(a)(1).
27. Martinez v. State,
501 S.W.2d 130, 131-132 (Tex. Crim. App. 1973), appeal dism'd,
415 U.S. 970 (1974); Brown v. State, 475 S.W.2d 938, 957
(Tex. Crim. App. 1971).
28. 501 S.W.2d at 132.
29. Id.
30. Norris, 902
S.W.2d at 442.
31. Escamilla v. State,
143 S.W.3d 814, 828 (Tex. Crim. App. 2004).
32. Resendiz v. State,
112 S.W.3d 541, 546 (Tex. Crim. App. 2003), cert. denied,
124 S. Ct. 2098 (2004).
33. Escamilla, 143
S.W.3d at 828; Busby v. State, 990 S.W.2d 263, 272 (Tex.
Crim. App. 1999), cert. denied, 528 U.S. 1081 (2000).
34. 527 U.S. 373 (1999).
35. Resendiz, 112
S.W.3d at 549. |
