Leader of 'Texas 7' prison-break gang put to
Michael Graczyk, Associated Press
Wednesday, February 29, 2012
HUNTSVILLE, Texas (AP) — The leader of the
fugitive gang known as the "Texas 7" was executed Wednesday for
killing a suburban Dallas police officer during a robbery 11 years
ago after organizing and pulling off Texas' biggest prison break.
George Rivas, 41, from El Paso, received lethal
injection for gunning down Aubrey Hawkins, a 29-year-old Irving
police officer who interrupted the gang's holdup of a sporting
goods store on Christmas Eve in 2000. The seven inmates had fled a
South Texas prison about two weeks earlier.
The gang was caught in Colorado about a month
after the officer's death. One committed suicide rather than be
arrested. Rivas and five others with lengthy sentences who bolted
with him were returned to Texas where they separately were
convicted of capital murder and sentenced to die.
Rivas became the second of the group executed.
"I do apologize for everything that happened.
Not because I'm here, but for closure in your hearts," Rivas said
Wednesday evening in a statement intended for Hawkins' family. "I
really do believe you deserve that."
The slain officer's relatives were absent, but
four officers who worked with him and the district attorney who
prosecuted the case attended on his family's behalf. They stood in
the death chamber watching through a window just a few feet from
The inmate thanked his friends who were
watching through another window and said he loved them. A Canadian
woman whom Rivas recently married by proxy, also looked on.
"I am grateful for everything in my life,"
Rivas said. "To my wife, I will be waiting for you."
Ten minutes later, at 6:22 p.m. CST, he was
More than two dozen police officers in uniforms
stood quietly in a line outside the Huntsville prison during the
execution, then walked in unison to stand behind the state
criminal justice spokesman as he announced Rivas' death.
Texas' parole board voted 7-0 this week to
reject a clemency petition for Rivas. No 11th-hour appeals were
made to try to head off the execution, the second this year in the
nation's most active death penalty state.
Rivas and accomplices he handpicked for the
escape broke out of the Texas Department of Criminal Justice
Connally Unit, about an hour south of San Antonio, on Dec. 13,
2000. They overpowered workers, stole their clothes, broke into
the prison armory for weapons and drove off in a prison truck.
They left behind an ominous note: "You haven't
heard the last of us yet."
While out of prison, they supported themselves
by committing robberies.
Hawkins was shot 11 times and run over with a
stolen SUV driven by Rivas as the gang held up a sporting goods
store closing on the holiday eve. They drove off with loot that
included $70,000 in cash, 44 firearms and ammunition for the guns.
They were arrested a month later in Colorado,
ending a six-week nationwide manhunt. One of the fugitives, Larry
Harper, committed suicide as officers closed in.
In 2008, accomplice Michael Rodriguez, 45, who
at the time of the breakout had a life term for arranging the
slaying of his wife, ordered his appeals dropped and was executed.
The four others remain on death row awaiting the outcome of court
"Today is not about George Rivas," said Toby
Shook, the former Dallas County assistant district attorney who
prosecuted Rivas and the others for Hawkins' death. "Today is
about justice for Aubrey Hawkins and Aubrey's fellow police
Rivas planned the escape while serving 17 life
sentences for aggravated kidnapping and aggravated robbery and
another life sentence for burglary.
One of his trial lawyers, Wayne Huff, has said
Rivas picked accomplices for the breakout "who probably were more
dangerous than he was" and failed to consider they might get
caught doing robberies.
"When that cop pulled up, no one knew what to
do," Huff said, calling the officer's slaying "just a tragic
Rivas and two other members of the fugitive
gang were arrested at a convenience store near a trailer park in
Woodland Park, Colo. Two others were in a motor home at the
trailer park, where Harper shot himself to death. The last two
were apprehended at a motel in Colorado Springs, Colo.
The men had told the people who ran the RV park
they were Christian missionaries from Texas, but a neighbor
recognized them as the case was profiled on the "America's Most
Wanted" TV show and called police.
The four "Texas 7" members still awaiting
execution are Patrick Murphy Jr. 49; Joseph Garcia, 40; Randy
Halprin, 34; and Donald Newbury, 49. Newbury was set for injection
in early February but was spared, at least temporarily, by a U.S.
Supreme Court order.
'Texas 7' Gang Leader Executed In Huntsville
February 29, 2012
HUNTSVILLE (CBSDFW.COM) – The leader of a group
of prison escapees that became known as the Texas Seven is dead.
At 6:22 p.m. Wednesday, the state of Texas
executed George Rivas, the highest profile death row inmate in
Rivas was already a notorious criminal, serving
a total of 18 consecutive 15-year-to-life sentences, when he
gained infamy in 2000 as the leader of a band of prison escapees.
Wednesday evening, the 41-year-old was
administered a lethal injection in the state’s death chamber in
His last words were an apology to the family of
a man he killed, Irving Police officer Aubrey Hawkins.
On Christmas Eve of 2000, eleven days after
Rivas and six other violent prisoners broke out of the Connally
Unit in Kenedy, the group robbed a sporting goods store in Irving.
Officer Hawkins arrived on the scene, was shot
nearly a dozen times, and was then run over.
“I do apologize for everything that happened,
not because I am here, but for closure in your hearts,” said Rivas
in his final words. “I am ready to go.”
The seven escapees remained on the run for
another month before authorities received a tip they were staying
at an RV park in Woodland Park, Colorado.
Six of the escapees were captured, including
Rivas, while a seventh committed suicide.
Rivas was tried in Dallas and said he deserved
a death sentence, but spent 11 years appealing the punishment.
“Aubrey was my man, he worked for me, I felt
responsible for him,” said former Irving Police Chief Lowell
Among those in Huntsville who witnessed the
execution was attorney Toby Shook, the prosecutor in the Rivas
“This crime couldn’t be more brutal… breaking
out of prison, murdering a police officer. It’s a case that gives
a great example to why the death penalty is appropriate in certain
cases,” said Shook. “Today is not about George Rivas. Today is not
about the death penalty. Today is about justice for Aubrey
While a group of Irving police officers waited
for word that Rivas had been executed, a text message brought a
bittersweet smile to Cannady’s face.
“I got a text a little while ago that said his
son is about to be a father, so I think that made me feel really
good,” he said. “Everything from joy for him to regret that his
father is not going to be here for that occasion.”
Michael Rodriguez is the only one of the six
living escapees to be executed so far. Four others remain on death
row in the Polunksy Unit in Livingston.
(born May 6, 1970) was the ringleader of the infamous Texas 7
criminal group. Rivas, a career criminal, is on Texas' death
He was born in El Paso, Texas and raised by
his grandparents from age six, after his parents divorced. In
high school, Rivas dreamed of being a police officer, but his
interest in money and guns helped shape him into a criminal. He
named his dogs Ruger and Beretta, after two gun brands.
One year after graduating from Ysleta High
School, he committed his first robbery and burglary. Since he
had no prior criminal record, he was sentenced to ten years of
probation. Meanwhile, he enrolled as a general studies major at
the University of Texas at El Paso. He dropped out after three
semesters, in the spring of 1993.
He eventually committed a string of robberies.
He robbed a Radio Shack in El Paso on October 3, 1992; On
October 23, he robbed a Checker's Auto Parts store. About two
weeks later, he robbed an Oshman's sporting goods store. On May
12, 1993, he robbed a Furr's Grocery store in El Paso; and on
May 25, 1993, Rivas and a friend robbed a Toys "Я" Us.
He was arrested after this robbery and
suspected of having robbed stores in Texas, Oklahoma and New
Mexico. Rivas was sentenced to 18 life sentences in prison, 17
of them consecutive. After a few years, he developed a plan to
Rivas, along with six other men, broke out of
the John Connally Unit in Kenedy, Texas on December 13, 2000.
The following day, on December 14, he and his teammates robbed a
Radio Shack in Pearland, Texas.
On December 24, the group robbed an Oshman's
in Irving, Texas. He and his group shot and killed a police
officer named Aubrey Hawkins. The reward for him and his
accomplices grew after the infamous robbery and murder.
Rivas was arrested at a trailer park in
Colorado on January 23, 2001 inside a Jeep Cherokee, with Joseph
Garcia and Michael Rodriguez. Three others – Randy Halprin,
Patrick Murphy and Donald Newbury, were arrested over the next
two days. Larry Harper killed himself.
Rivas was extradited to Texas, tried and
sentenced to death – the penalty he asked for. He is still on
death row. Subsequent to his conviction, Rivas married a woman
he corresponded with throughout his capital murder trial.
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
The group was composed of the following Texas
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)
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.
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
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
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
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.
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
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
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.
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
Rivas, TDCJ#999394, was executed on February
29, 2012 at 6:22 pm.
In the Court of Criminal
Appeals of Texas
George Rivas, Appellant,
The State of Texas
On Direct Appeal from Dallas
delivered the opinion of the Court,
in which Keller, P.J., and
Price, Womack, Keasler, Hervey, Holcomb,
and Cochran, JJ.,
joined. Meyers, J., concurred
as to point of error seven and otherwise joined the opinion of the
O P I N I O N
29, 2001, appellant was convicted of capital murder. Tex. Penal
Code Ann. § 19.03(a)(1), (a)(2). 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), (1)
the trial judge sentenced appellant to death. Art. 37.071, § 2(g).
Direct appeal to this Court is automatic. Art. 37.071, § 2(h).
Appellant raises seventeen points of error. We will affirm.
In his first
two points of error, appellant argues that the trial court erred
by admitting the written statement that he gave while he was
detained in Colorado. Appellant claims that his statement was
obtained in violation of Colorado law because jail personnel
refused to allow the public defender to have immediate access to
him. He contends that the laws of Texas and Colorado conflict as
to the admissibility of his statement and that choice of law
principles dictate that Colorado law should apply in this case.
Such conflict, if any, is meaningless. The only relevant inquiry
is whether the statement was obtained in compliance with the
dictates of Article 38.22. See Nonn v. State, 41 S.W.3d
677, 679 (Tex. Crim. App. 2001). Appellant does not assert that
his statement was obtained in violation of Article 38.22. Points
of error one and two are overruled.
In his third
point of error, appellant contends that he received ineffective
assistance of counsel at the guilt/innocence phase of the trial.
During a pretrial hearing, counsel challenged the legality of an
evidentiary search warrant which authorized the taking of
appellant's saliva for DNA testing. Counsel objected that it was
an unreasonable search and seizure, the affidavit failed to
establish probable cause, and the warrant was not signed by a
district court judge. The trial court overruled counsel's pretrial
objections. At trial, the state presented evidence without
objection that appellant's DNA matched the DNA collected from the
victim's gun and from the driver's seat of the store manager's
Ford Explorer, which the assailants used to flee from the crime
scene. Appellant contends that counsel was ineffective because he
failed to re-urge his pretrial objections when the DNA evidence
was introduced at trial.
It was not
necessary for counsel to repeat the objections at trial.
Fuller v. State, 827 S.W.2d 919, 930 (Tex. Crim. App. 1992),
cert. denied, 509 U.S. 922 (1993); TEX. R. APP. P.
103(a)(1). The pretrial objections were sufficient to preserve
error. Id. Point of error three is overruled.
fourth and fifth points of error, appellant challenges the trial
court's refusal to submit to prospective jurors appellant's
requested questionnaire concerning exposure to pretrial publicity.
Appellant alleges in point of error four that the trial court's
actions violated Articles 35.17 and 35.16. In point of error five,
he contends that the trial court's actions violated his right to a
fair and impartial jury under the Sixth and Fourteenth Amendments
to the United States Constitution.
requested the trial court to submit the following questionnaire to
the entire panel of prospective jurors prior to individual
voir dire examination:
been called as a prospective juror in the State of Texas vs.
George Rivas. This case has received pretrial publicity. George
Rivas is charged with causing the death of Aubrey Hawkins, an
Irving police officer, during the course of robbing a [sic]
Oshman's Super Store in Irving, Texas.
answer the following questions:
Have you, as
a result of the media, hearsay, or any other reason, formed in
your mind, an opinion about the guilty [sic] or innocence of the
defendant, George Rivas[?]
Yes _____ No
conclusion influence you in your acts in finding a verdict in the
Yes _____ No
asked the trial court to submit this questionnaire to prospective
jurors, before submitting the trial court's own questionnaire, "in
an effort to decide which jurors were preliminarily qualified on
the issue of publicity to fill out additional questions." The
trial court refused appellant's request and instead propounded the
following questions concerning publicity:
INDICATE WHETHER YOU AGREE OR DISAGREE WITH THE FOLLOWING
defendant in a criminal case should be presumed to be innocent
unless that [sic] the State proves their guilt beyond a reasonable
doubt, if it does.
[ ] Agree [
(2) A jury's
verdict should be based only on the evidence heard in the
courtroom, and not from what one hears outside the courtroom.
[ ] Agree [
(3) What one
hears in the news media is a better source of information than
testimony one hears in the courtroom. [ ] Agree [ ] Disagree
Do you think
you have heard about this case? [ ] Yes [ ] No
please give details (including how you heard - radio, TV,
newspaper, word of mouth).
prospective jurors completed the trial court's questionnaire and
before either side began individual voir dire, appellant
again asked the trial judge to submit to the jury the publicity
questions contained in appellant's proposed questionnaire. The
trial court again denied appellant's request.
argues that the trial court was statutorily required to ask his
proposed questions under Articles 35.17 and 35.16. Article
35.17(2) provides as follows:
In a capital
felony case in which the State seeks the death penalty, the court
shall propound to the entire panel of prospective jurors questions
concerning the principles, as applicable to the case on trial, of
reasonable doubt, burden of proof, return of indictment by grand
jury, presumption of innocence, and opinion. Then, on
demand of the State or defendant, either is entitled to examine
each juror on voir dire individually and apart from the entire
panel, and may further question the juror on the principles
propounded by the court.
35.17(2)(emphasis added). Article 35.16(a)(10) states that a
prospective juror may be challenged for cause if "from hearsay, or
otherwise, there is established in the mind of the juror such a
conclusion as to the guilt or innocence of the defendant as would
influence him in his action in finding a verdict." Article
35.16(a)(10) further provides: "To ascertain whether this cause of
challenge exists, the juror shall first be asked whether, in his
opinion, the conclusion so established will influence his verdict.
If he answers in the affirmative, he shall be discharged without
further interrogation by either party or the court."
contends that Article 35.17(2) must be read in conjunction with
Article 35.16(a)(10). He asserts that Article 35.17 dictates that
the trial court "shall" first propound questions to the entire
panel of prospective jurors concerning their "opinions," including
their knowledge of the case. Then, under Article 35.16(a)(10), if
a prospective juror has a preexisting conclusion as to the guilt
or innocence of the defendant that would influence his verdict, he
must be discharged for cause without further questioning by either
party or the court.
plain language, Article 35.17 concerns the voir dire
examination of prospective jurors, and Article 35.16 sets out the
reasons for making a challenge for cause to a prospective juror.
Nothing in the language of either statute refers to the other. The
trial court asked prospective jurors about their knowledge of the
case gained through exposure to pretrial publicity and their
opinions about information from the news media, in compliance with
Article 35.17(2). (2) In addition
to the publicity-related questions, the trial court's
questionnaire contained the following remarks concerning opinion
and pretrial publicity:
been news media coverage regarding this case. If chosen as a juror
you will have taken an oath that requires you to return a verdict,
whatever that verdict is, on the basis of the evidence that you
hear in the courtroom and not from some outside source. Therefore,
there is nothing wrong with a prospective juror, such as yourself,
having heard of this defendant. However, it is not permissible if
what you have heard causes you to have a preconceived conclusive
opinion that the defendant is guilty or not guilty, or a
preconceived conclusive opinion as to what punishment the
defendant should receive, if found guilty. A juror is not
qualified to serve if there is established in the mind of the
juror such a conclusion as to the guilt or innocence of the
defendant as would influence the jurors action(s) in reaching a
. . . A
juror, to be qualified, must set aside any opinion held concerning
a defendant's guilt that was formed by the reading of newspaper
accounts, by seeing or hearing other media reports, or through
rumor or hearsay.
was also able to examine prospective jurors individually and apart
from the entire panel regarding their opinions resulting from
exposure to pretrial publicity, and to make challenges for cause
accordingly. Art. 35.17(2); Art. 35.16(a)(10). The trial court did
not abuse its discretion in refusing to submit appellant's
proposed questions to prospective jurors. The trial court neither
violated appellant's statutory rights under Articles 35.17 and
35.16, nor did it violate appellant's constitutional right to a
fair and impartial jury. Points of error four and five are
In his sixth
point of error, appellant asserts that the trial court violated
his constitutional right to a fair trial by permitting two
sheriff's deputies to sit directly behind him during jury
selection. Appellant argues that the presence of two armed guards
seated directly behind him "inevitably impacted" the jury's
determination of the future-dangerousness special issue.
to prevail on an appeal claiming reversible prejudice resulting
from external juror influence, must show either actual or inherent
prejudice. Howard v. State, 941 S.W.2d 102, 117 (Tex.
Crim. App. 1996). The test to determine actual prejudice is
whether jurors actually articulated a consciousness of some
prejudicial effect. Id.
prejudice rarely occurs and is reserved for extreme situations.
Id. In Holbrook v. Flynn, 475 U.S. 560 (1986),
the Supreme Court distinguished the presence of guards from
shackling and held that reason and common experience weigh against
a presumption that the presence of guards in the courtroom is
inherently prejudicial. Id. at 569. We have also held
that the presence of guards is not as inherently prejudicial as
shackling. Marquez v. State, 725 S.W.2d 217, 230 (Tex.
Crim. App.), cert. denied, 484 U.S. 872 (1987). Appellant
contends that these cases are not applicable because they focus on
external juror influence as it affects the presumption of
innocence, while the issue in this case involves the effect of
external juror influence on the jury's determination of future
dangerousness. Holbrook and its progeny are not so
limited. In fact, the Supreme Court in Holbrook held that
the presence of guards in a courtroom need not be interpreted as
an indication that the defendant is culpable or
particularly dangerous. Holbrook at 569.
placement of the two sheriff's deputies behind appellant was not
inherently prejudicial. Further, appellant has not demonstrated
actual prejudice. At no time were jurors questioned regarding
their conscious perception of impermissible external influence.
Howard, 941 S.W.2d at 117 n. 12. Point of error six is
In point of
error seven, appellant contends that the trial court violated Rule
403 in admitting fourteen autopsy photographs into evidence at the
guilt or innocence phase of the trial. Appellant argues that the
number of photographs was excessive, that they were gruesome in
nature, and that their prejudicial effect outweighed any possible
probative value. Rule 403 requires that a photograph have some
probative value and that its probative value not be substantially
outweighed by its inflammatory nature. Tex. R. Evid. 403; Long
v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991),
cert. denied, 505 U.S. 1224 (1992). A court may consider many
factors in determining whether the probative value of photographs
is substantially outweighed by the danger of unfair prejudice.
These factors include: the number of exhibits offered, their
gruesomeness, their detail, their size, whether they are in color
or black-and-white, whether they are close-up, whether the body
depicted is clothed or naked, the availability of other means of
proof, and other circumstances unique to the individual case.
Long, 823 S.W.2d at 272; Santellan v. State, 939 S.W.2d
155, 172 (Tex. Crim. App. 1997). The admissibility of photographs
over an objection is within the sound discretion of the trial
judge. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim.
App. 1995). Autopsy photographs are generally admissible unless
they depict mutilation of the victim caused by the autopsy itself.
Santellan, 939 S.W.2d at 172; Burdine v. State,
719 S.W.2d 309, 316 (Tex. Crim. App. 1986), cert. denied,
480 U.S. 940 (1987).
complains about the admission of state's Exhibits 195 through 208,
autopsy photographs showing the victim's numerous injuries. The
record contains 8 x 10 black-and-white photocopies of the fourteen
original photographs. We cannot determine from the record whether
the original photographs shown to the jury were color or black-and-white.
introduced evidence that appellant and the other assailants shot
the victim multiple times and ran over his body with an automobile,
dragging his body several feet in the process. Exhibits 195
through 200 depict injuries to the victim's head and neck. Exhibit
195 is a front view of the victim's face showing the wounds, cuts,
and abrasions to his face, as well as an identification number on
his forehead. Exhibit 196 shows the gunshot wound to the victim's
eye, with the eye being held open by the medical examiner. Exhibit
197 is a view of the left side of the victim's head that shows the
gunshot wounds to his face and neck. Exhibit 198 depicts the
gunshot wound to the victim's ear. Exhibit 199 shows the gunshot
wound to the back of the victim's neck. Exhibit 200 offers a
closer view of the gunshot wounds on the left side of the victim's
face and neck.
through 208 depict the injuries that the victim sustained to the
rest of his body. Exhibits 201 and 202 show the gunshot wounds to
the back of the victim's shoulder and his upper back. Exhibit 203
depicts the gunshot wound to the front of the victim's chest as
well as abrasions and bruising in the chest area. Exhibit 204
shows the victim's naked body, from his head to his knees, lying
face down on the autopsy table. Exhibits 205 and 206 show gunshot
wounds on the victim's arms, and Exhibits 207 and 208 depict
abrasions on his legs.
examiner testified that he edited out several of the numerous
autopsy photographs and chose only the ones that were necessary to
explain the victim's injuries to the jury. Appellant complains
that "the same information related in the photographs was
available to the jury through other less prejudicial evidence,"
namely a life-sized mannequin which contained dowels to
demonstrate the path of the bullets. We disagree. The purpose of
the mannequin was to illustrate the entry and exit wounds and the
trajectory of the path that the bullet took through the victim's
body, while the autopsy photographs more fully explained the
extent and nature of the victim's injuries. Appellant asserts that
Exhibit 203, a photograph of the injuries to the victim's chest,
should have been excluded because it showed suturing and
defibrillation abrasions from resuscitation efforts in the
emergency room. The medical examiner testified that the photograph
was necessary to show the abrasions on the victim's chest. He
explained to the jury that the sutured incision and one of the
abrasions resulted from emergency resuscitation procedures, and
clarified that the other abrasions were consistent with the victim
being shot in the chest while wearing body armor. The depiction of
the sutured incision in Exhibit 203 is not particularly offensive
or gruesome, and the rest of the photographs at issue portray no
more than the gruesomeness of the victim's injuries. Narvaiz
v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992),
cert. denied, 507 U.S. 975 (1993).
of unfair prejudice did not substantially outweigh the probative
value of the photographs. The photographs were relevant and
probative to the medical examiner's testimony as to the nature and
extent of the injuries and the cause of death. The trial court did
not abuse its discretion in admitting state's Exhibits 195 through
208. Point of error seven is overruled.
eighth point of error, appellant argues that the trial court
erroneously admitted the expert testimony of Dr. Richard Coons.
Coons testified at punishment that it was his opinion that
appellant would be a future danger to society. Appellant asserts
that Coons' prediction of future dangerousness was inadmissible
under Tex Rule Evid. 702 (4)
because it failed to meet the requirements for scientific
reliability, as defined in Kelly v. State, 824 S.W.2d 568
(Tex. Crim. App. 1992) (5), and
Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998)
In a hearing
outside the presence of the jury, Coons testified that he had
formed an opinion about appellant's future dangerousness. His
opinion was based on appellant's statements, police and autopsy
reports, witness statements and affidavits, and previous
psychiatric evaluations made by other psychiatrists who had
examined appellant. In response to questions from the defense, Dr.
Coons testified (1) that he himself had not examined appellant,
(2) that he had not consulted with other experts in the field
regarding his opinion, (3) that he was unaware of any literature
or studies regarding predictions of future dangerousness in
capital cases, and (4) that he himself had never performed any
follow-up study to determine the accuracy of his own predictions,
and thus did not know the rate of error.
then objected on the record to the introduction of Dr. Coons'
testimony as failing the test governing reliability of scientific
testimony. The state countered by pointing to Dr. Coons'
qualifications, to the fact that he had testified in similar
matters before, and to the fact that the case law allows
psychiatric testimony regarding future dangerousness. The trial
court ruled Dr. Coons' testimony admissible, but allowed a running
presence of the jury, Dr. Coons testified about his education and
his extensive qualifications as a practicing psychiatrist. He
testified that he had evaluated thousands of criminal defendants
for issues such as competency to stand trial, sanity at the time
of the offense, and the risk of future dangerousness. When asked
what criteria he used when making assessments of future
dangerousness in capital cases, Dr. Coons listed several factors
that he looked at in order to make such determinations: First, he
determined whether the defendant had an "active mental illness."
He looked at the defendant's history of violence, his attitude
about violence, and the facts of the offense in question. Then he
looked at the defendant's personality and behavior patterns during
his life so far. He considered whether the defendant appeared to
have a conscience to help him control his behavior. And lastly, he
looked at the future society of the defendant (i.e., whether that
person would be on death row or in general population).
prosecutor then asked Dr. Coons whether, if he were given a
hypothetical fact situation, he could give an opinion as to
whether the individual in the hypothetical would be a continuing
danger to society by committing criminal acts of violence. Dr.
Coons replied that he could do so, as a psychiatrist, if he had
enough data. The state then presented a long hypothetical, based
on the facts established by the evidence in appellant's trial, and
Dr. Coons expressed his opinion that the person described in the
hypothetical would probably commit criminal acts of violence in
the future, which would constitute a continuing threat to society.
Dr. Coons further testified that the person described would not be
amenable to rehabilitation. Although he conceded that "you don't
make a diagnosis of somebody that you haven't evaluated," he
opined that the person described would not be suffering from any
type of mental disease, but would have "personality problems"
which would not be treatable.
made specific objections on the record to Dr. Coons' testimony,
thereby preserving the issue for appeal. We review the trial
court's decision to admit expert testimony under an abuse of
discretion standard. Ortiz v. State, 834 S.W.2d 343, 347
(Tex. Crim. App. 1992).
v. State, this Court held that, when addressing the
reliability of the social sciences or fields that are based
primarily upon experience and training as opposed to the
scientific method, the appropriate questions are: (1) whether the
field of expertise involved is a legitimate one; (2) whether the
subject matter of the expert's testimony is within the scope of
that field; and, (3) whether the expert's testimony properly
relies upon or utilizes the principles involved in that field.
Nenno, 970 S.W.2d at 561. We noted that while "hard science
methods of validation, such as assessing the potential rate of
error or subjecting a theory to peer review, may often be
inappropriate for testing the reliability of fields of expertise
outside the hard sciences . . . [w]e do not categorically rule out
employing such factors in an appropriate case." Id. at
proponent of scientific evidence bears the burden of showing that
the proffered evidence is relevant and reliable. Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). After a
hearing outside the presence of the jury, the trial court in this
case ruled that Dr. Coons' testimony was admissible. During that
hearing, the prosecutor listed the materials that had been
provided to Dr. Coons, and established that Dr. Coons would
testify as to his opinion in response to a hypothetical fact
situation. Dr. Coons did not testify during this hearing about his
educational background, his professional experience, or other
qualifications. Nor did he explain the scientific basis for his
opinion. The defense attacked the validity of Dr. Coons' proposed
testimony based on the Kelly factors. When asked to
respond, the state argued simply that the case law supported
allowing psychiatrists to testify to future dangerousness, that
Dr. Coons was "obviously very qualified, has testified in these
matters before," and that he had previous experience with Mr.
Rivas. (7) Because the state
presented no other evidence, the trial court's decision to allow
Dr. Coons' opinion was essentially taking judicial notice of the
reliability of psychiatric testimony regarding future
court's acceptance of the reliability of psychiatric testimony on
this subject without requiring the state to present extrinsic
evidence of that reliability is not unusual. Indeed, the United
States Supreme Court held that such testimony was not per se
inadmissible almost twenty years ago, in Barefoot v. Estelle,
463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983). Since
that time, psychiatric prediction of future dangerousness has been
widely used in our courts. See Griffith v. State, 983 S.W.2d
282, 288 (Tex. Crim. App. 1998)(approving expert opinion about
future dangerousness based on review of investigative reports,
crime scene photos, autopsy photos, witness statements, and
defendant's school and personnel records), cert. denied,
528 U.S. 826 (1999); McBride v. State, 862 S.W.2d 600,
609 (1993)(hypothetical question based upon facts in evidence is a
permissible form for a psychiatrist's testimony on the issue of
future dangerousness), cert. denied, 512 U.S. 1246
Barefoot in 1983, the United States Supreme Court
addressed the punishment-phase testimony of two psychiatrists, who
had at that time testified in more than 100 capital cases. After
considering the arguments, including an impassioned amicus
brief from the American Psychiatric Association
(8), the Court refused to find such testimony
inadmissible per se:
unconvinced, however, at least as of now, that the adversary
process cannot be trusted to sort out the reliable from the
unreliable evidence and opinion about future dangerousness,
particularly when the convicted felon has the opportunity to
present his own side of the case.
v. Estelle, 463 U.S. at 901 (1983).
testimony in the instant case was certainly much more restrained
than the psychiatric testimony in Barefoot. He did not
claim 100% certainty in his prediction, and he admitted that it
would not be proper to diagnose an individual without examining
that individual personally. Most of the statements he made
regarding an individual's propensity to commit violent acts in the
future were based on common-sense principles (for example,
individuals with a long history of violence tend to continue to
commit acts of violence).
case, even if we were to find that the trial court erred in
admitting Dr. Coons' testimony without requiring the state to meet
its burden of showing reliability, we could not find that such an
error would have influenced the jury's decision. We review the
erroneous admission of testimony at the punishment phase under
Rule 44.2(b) of the Texas Rules of Appellate Procedure. Fowler
v. State, 991 S.W.2d 258 (Tex. Crim. App. 1999). Under Rule
44.2(b), we must disregard any error that did not affect
appellant's substantial rights. An appellate court does not
overturn a criminal conviction for non-constitutional error if it,
after examining the record as a whole, has fair assurance that the
error did not influence the jury, or influenced the jury only
slightly. The appellate court should consider everything in the
record, including testimony and physical evidence, the nature of
the evidence supporting the verdict, and the character of the
error and its relationship to other evidence. Schutz v. State,
63 S.W.3d 442 (Tex. Crim. App. 2001).
evidence that appellant had sexually abused his half-sister as a
child. He was serving seventeen stacked life sentences for violent
crimes when he orchestrated the violent prison escape that led to
a police officer's death. After escaping to Colorado, appellant
continued to acquire weapons, belying any claim that he planned to
live peacefully on the outside. Dr. Coons' testimony could not
have significantly influenced the jury's decision because
appellant himself had demonstrated a continuing propensity for
violent behavior which was unlikely to change. Point of error
eight is overruled.
In point of
error nine, appellant argues that "this appeal should be abated
supplemented to include the evidentiary search warrant used by the
state to obtain DNA evidence from appellant." Appellant challenges
the validity of the search warrant used to obtain a sample of his
DNA. He claims that he cannot brief this issue for appeal without
supplementation of the record.
26, 2002, appellant filed a motion in this Court to abate his
appeal so that the record could be supplemented with the
challenged warrant. On October 2, 2002, we granted appellant's
motion to the extent that we ordered the Dallas County District
Clerk to supplement the record with the warrant. On October 10,
2002, we received a letter from the Dallas County District Clerk
stating that he did not find the warrant and its accompanying
affidavit in the trial court's file. Our own review of the record
showed that the warrant and affidavit were not contained therein.
There was no indication in the record that the warrant and
affidavit were introduced as exhibits in appellant's case. Thus,
we denied appellant's motion in its entirety on October 21, 2002.
already denied appellant's request to abate his appeal for
supplementation of the record because the complained-of warrant
and its accompanying affidavit were not introduced into evidence.
For the same reason, we decline to abate the appeal so that
appellant can prepare his point of error. Point of error nine is
challenges the trial court's parole-law jury instruction in point
of error ten. The record reflects that the trial court submitted a
parole-law jury instruction consistent with the one currently set
out in Article 37.071, § 2(e)(2)(B):
law applicable to this case, if the defendant is sentenced to
imprisonment in the Institutional Division of the Texas Department
of Criminal Justice for life, the defendant will become eligible
for release on parole, but not until the actual time served by the
defendant equals 40 years, without any consideration of good
conduct time. It cannot accurately be predicted how the parole
laws might be applied to this defendant if the defendant is
sentenced to a term of imprisonment for life because the
application of those laws will depend on decisions made by prison
and parole authorities, but eligibility for parole does not
guarantee that parole will be granted.
court also instructed the jury as follows:
deliberations, you are not to consider or discuss the possible
action of the Board of Pardons and Paroles or the Governor, nor
how long a defendant would be required to serve on a sentence of
life imprisonment, nor how the parole laws would be applied to
this defendant. Such matters come within the exclusive
jurisdiction of the Board of Pardons and Paroles and are of no
concern of yours.
argues that this portion of the instruction erroneously informs
the jury not to consider a life-sentenced appellant's parole
eligibility. We disagree. Consistent with Article 37.071, §
2(e)(2)(B), this part of the charge instructed the jury not to
consider how long a life-sentenced appellant would serve after
becoming eligible for parole. See Turner v. State, 87 S.W.3d
111, 116 (Tex. Crim. App. 2002), cert. denied, 123 S. Ct.
1760 (2003). Point of error ten is overruled.
contends in point of error eleven that the mitigation special
issue is unconstitutional because it omits a burden of proof.
Appellant argues that Apprendi v. New Jersey, 530 U.S.
466 (2000), requires the state to prove beyond a reasonable doubt
that the mitigation issue should be answered in the negative.
is inapplicable to Article 37.071. Apprendi applies to
facts that increase the penalty beyond the "prescribed statutory
maximum." Under Article 37.071, the "prescribed statutory maximum"
is fixed at death. There are no statutory enhancements. A positive
jury finding on the mitigation issue does not have the potential
of increasing the penalty beyond the prescribed statutory maximum.
It has the potential for reducing the prescribed statutory maximum
to a sentence of life imprisonment. Further, Apprendi
does not address the burden of proof; it instead addresses the
question of who the fact finder should be for the sentence
enhancement. Allen v. State, 108 S.W.3d 281, 285(Tex.
Crim. App. 2003). Point of error eleven is overruled.
In point of
error twelve, appellant complains that the trial court failed to
define the terms "probability," "criminal acts of violence," and "continuing
threat to society" in its charge to the jury at the punishment
phase. Appellant contends that the trial court's failure to
instruct the jury properly violated his rights under the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution. We have previously rejected these arguments and have
consistently held that these terms need not be defined in the
charge. Ladd v. State, 3 S.W.3d 547, 572-73 (Tex. Crim.
App. 1999), cert. denied, 529 U.S. 1070 (2000);
Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993),
cert. denied, 510 U.S. 1215 (1994). Point of error twelve
argues in point of error thirteen that Article 37.071 violates the
Eighth and Fourteenth Amendments by requiring at least ten jurors
to agree in order to return a negative answer to the punishment
special issues. Art. 37.071, § 2(d)(2) and § 2(f)(2). Citing
Mills v. Maryland, 486 U.S. 367 (1988), he argues that this
requirement creates the danger that potential hold-out jurors will
believe that their votes in favor of a life sentence are worthless
unless nine others agree to join them. We have previously decided
this issue adversely to appellant. Williams v. State, 937
S.W.2d 479, 490 (Tex. Crim. App. 1996); Lawton v. State,
913 S.W.2d 542, 558-59 (Tex. Crim. App. 1995), cert. denied,
519 U.S. 826 (1996); Draughon v. State, 831 S.W.2d
331, 337-38 (Tex. Crim. App. 1992), cert. denied, 509 U.S.
926 (1993). Point of error thirteen is overruled.
complains in his fourteenth and fifteenth points of error that the
Texas capital sentencing scheme violated his rights under the
Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, §§ 13 and 19, of the Texas
Constitution. Appellant argues that the Texas scheme is
unconstitutional "because of the impossibility of simultaneously
restricting the jury's discretion to impose the death penalty
while also allowing the jury unlimited discretion to consider all
evidence militating against imposition of the death penalty." In
support of his argument, appellant relies upon Justice Blackmun's
dissenting opinion in Callins v. Collins, 510 U.S. 1141
repeatedly rejected these state and federal constitutional claims.
Bell v. State, 938 S.W.2d 35, 53-54 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 827 (1997); McFarland v. State,
928 S.W.2d 482, 520 (Tex. Crim. App. 1996), 519 U.S. 1119 (1997);
Lawton, 913 S.W.2d at 558. Appellant's fourteenth and
fifteenth points of error are overruled.
appellant's sixteenth and seventeenth points of error, he alleges
that "the cumulative effect of the above-enumerated constitutional
violations" denied him due process and due course of law under the
federal and state constitutions. We have recognized the
proposition that a number of errors may be found harmful in their
cumulative effect; however, here we have rejected each of
appellant's points of error individually. Without error, there is
no cumulative effect. Chamberlain v. State, 998 S.W.2d
230, 238 (Tex. Crim. App. 1999), cert. denied, 528 U.S.
1082 (2000); Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.
App. 2000). Appellant's sixteenth and seventeenth points of error
the judgment of the trial court.
June 23, 2004