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Kent William SPROUSE

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Under the influence of methamphetamine
Number of victims: 2
Date of murders: October 6, 2002
Date of arrest: Same day (wounded by police)
Date of birth: August 9, 1972
Victims profile: Pedro Moreno / Harry Marvin "Marty" Steinfeldt III, 28 (police officer)
Method of murder: Shooting
Location: Ellis County, Texas, USA
Status: Sentenced to death on March 1, 2004
 
 
 
 
 
 

Name

TDCJ Number

Date of Birth

Sprouse, Kent William

999471

08/09/1972

Date Received

Age (when Received)

Education Level

03/01/2004

31

12

Date of Offense

Age (at the Offense)

County

10/06/2002

30

Ellis

Race

Gender

Hair Color

White

Male

Brown

Height

Weight

Eye Color

5' 10"

222

Hazel

Native County

Native State

Prior Occupation

Boone

Missouri

welder, construction, laborer

Prior Prison Record

None

Summary of incident


On 10/6/2002, in Ellis County, Texas, Sprouse was experiencing car trouble at a gas station.  He approached a customer and asked for assistance. 

When the customer was not able to repair his vehicle, Sprouse shot a hispanic male civilian who was filling his car with gas.  The store clerk called the police. 

Upon arrival, Sprouse shot the responding 28 year old white male police officer resulting in his death.
 

Co-defendants

None

Race and Gender of Victim

Hispanic male, White male

 
 
 
 
 
 

Sprouse sentenced to die for fatal shooting of Ferris officer

Waxahachie Daily Light

February 28, 2004

Following 2 hours and 25 minutes of deliberation Thursday, an Ellis County jury sentenced Kent William Sprouse to death by lethal injection for the shooting death of Ferris Police officer Harry Marvin "Marty" Steinfeldt III.

The 8-female, 4-male jury had convicted the 31-year-old Ferris man of capital murder on Tuesday, taking about 35 minutes to determine his guilt.

Steinfeldt and innocent bystander Pedro Moreno died Oct. 6, 2002, at the Diamond Shamrock in Ferris. Sprouse also has been charged under a separate indictment with capital murder in Moreno's death.

Following the formal sentencing by presiding Judge Gene Knize, emotional victims' impact statements were given in court by the slain officer's father, Harry "Butch" Steinfeldt Jr., and Michelle, his widow.

"He was raised as a good kid. He learned to take people at face value and he loved people with an open heart. He cared about people," the elder Steinfeldt said, addressing Sprouse. "He was a good son and a good husband . . And you have taken all of that away. You have caused more sorrow and pain than you can ever imagine in this whole family.

"And I'm talking about this family," the elder Steinfeldt said, gesturing toward a standing room only gallery of friends and family members for both his son and Moreno.

"Marty touched people," his father said, continuing his emotional words, noting that Steinfeldt would have been the 4th of 5 living generations, with the birth of his daughter.

"You have taken all of that away. You have taken a very valuable part of this family away," the elder Steinfeldt said. "We only have memories left, but those memories go on. Just like the day, Oct. 6, 2002, goes on with us."

As she spoke, Michelle Steinfeldt held a photograph of her and her late husband's daughter toward Sprouse as she spoke, insisting that he look at the little girl, who was born several months after her father was killed in the line of duty.

"I'm not just talking for myself. . I want you to look at her because she's too young to understand any of this. She's too young not to have a daddy who will ever take her to a dance, a daddy who won't be there to walk her down the aisle at her wedding," Michelle said. "Everything I'm saying to you is for the both of us so that someday I can tell her that I spoke for her, too."

A tearful Michelle spoke of the deep love she shared with her husband, who was 28 when he died.

"You have taken away the husband I loved and will love forever, a man of more morals and values than you can imagine," she said, noting that she had watched Sprouse throughout the trial, describing him as projecting an "air of arrogance" up until the sentence was read.

"It was like you were thinking you had won because you had a shotgun and you killed a cop. You didn't win. You didn't win over Marty," she said, telling Sprouse he would never have what her husband had.

"His friends and family thought the world of him," she said. "And you will never have a wife, who after just 14 months of marriage, had to go through this."

None of that can be taken away with a shotgun or by force, she continued.

"Marty will be remembered as a brave, brave man. You will be remembered as a coward that hid behind a car door. You are a destroyer of lives: our family's, the Moreno family's, and your own family's," she said, turning to where Sprouse's family members and friends sat on the other side of the courtroom.

"And your family, their pain is more than I can imagine," she said, acknowledging their tears before continuing. "You didn't win, you didn't win. You won that one gunshot battle but nothing else," she said, saying that she didn't want to see any remorse now from Sprouse. "Not for me, not for our baby. It's too late."

She and her daughter would be OK, Michelle said. "Now we have something special. We have our own angel watching over us, taking care of us. And one day, we're going to be all together again."

For Sprouse to be sentenced to death, jurors had to unanimously answer each of 2 separate special issues. The 1st issue related to the probability of whether Sprouse would commit future acts of violence; the 2nd issue related to whether jurors found any mitigating circumstances in the case that would warrant sentencing him to capital life. Under a capital life sentence, Sprouse would have served at least 40 years before becoming eligible for parole.

Under law, Sprouse will receive an automatic appeal of his case.

During closing arguments, lead defense attorney Jim Jenkins told jurors that the state had not proved its case of future dangerousness and asked them to carefully consider all of the trial's testimony in determining the sentence.

He argued that the state had to prove the probability of future dangerousness beyond a reasonable doubt.

"That's not maybe, not probably, not clear and convincing, it's beyond a reasonable doubt," he said, arguing that it is impossible to determine the future. "Each of you has to decide that (special issue). Is it even logical? Is it even possible for any of you to even vote on an issue where you try to predict what someone will do? . Is it logical to vote 'yes' on a question that can lead to death?"

Sprouse had no other history of arrests or convictions, only the acts of Oct. 6, 2002, Jenkins said. "We know that we can't take it back. And the death penalty - you can't take it back either - and the death penalty can't bring back those two gentlemen. We don't know how the death penalty can make anybody feel better. Would it make anybody feel better? It won't. It will not make anything better.

"Do we hate Kenneth Sprouse? Or do we hate his acts of that day?" Jenkins said, asking that the jury return a sentence of capital life.

"We know that the blood of Pedro Moreno will be on the hands of Kent Sprouse for a lifetime; we know that the blood of Marty Steinfeldt will be on his hands for a lifetime," Jenkins said, noting that each person on the jury had a vote. "And that vote will last for all time. It's your vote."

The jury had the power to give life or death, Jenkins said. "Please use your oath, please use your power to give life."

Lead prosecutor Cindy Hellstern said neither special issue should be decided in Sprouse's favor.

"There's certainly a probability Kent Sprouse may commit future acts of violence," she said, noting the instructions said a jury "may" consider mitigating factors. "It says you may consider; it doesn't say you must."

She said justice in the case applied not only to Sprouse but also to "all people here who survived Oct. 6, 2002."

"These people will live every day, the rest of their lives, with the results of that offense. That won't ever change," she said. "We are also asking for justice for the people who didn't survive. For Pedro Moreno, who did absolutely nothing and got a bullet in the head, and Marty Steinfeldt, who answered that call, doing what we pray each police officer will do.

"He responded without hesitation and put aside any fears for his own safety. He put aside his fear for his own family and he put himself between Kent Sprouse - who had a sawed off shotgun - and the other people he was sworn to protect," she said. "And for that, he died."

Chief felony prosecutor Don Maxfield described again for jurors the events of Oct. 6, 2002, which he said began with Sprouse taking a "fully loaded shotgun . to the convenience store on a Sunday afternoon."

Sprouse shot at two people at a pay phone before shooting Moreno through a gas pump, Maxfield said. "What does that tell you about Kent William Sprouse? . He knew exactly who he was aiming at and shooting.

"He shoots Pedro Moreno and down he goes. And right here, based on the evidence in this case and his 15 years of being a drug abuser, right here I could make a strong argument that he will commit future acts of violence, because 2 minutes and 19 seconds later, he did," Maxfield said. " . 2 minutes and 19 seconds after shooting Pedro Moreno, while Pedro Moreno is still breathing in his own blood, he (Sprouse) shoots officer Steinfeldt. And then what does he do? Six seconds later, he shoots Marty Steinfeldt again, who is lying on the ground. Right there, we're way beyond a reasonable doubt about his committing future acts of violence."

Maxfield also praised the slain officer's actions, noting that by interrupting "a killing spree" Steinfeldt paid "the ultimate price for the safety of everyone at the filling station that day."

"Marty Steinfeldt returned fire and in that hail of bullets Kent William Sprouse is wounded. And I submit to you that officer Steinfeldt saved lives because now that Kent Sprouse was wounded severely he had to think of his own safety (and) run away," Maxfield said, noting that the injured Sprouse surrendered to the second officer arriving on the scene. "He sure didn't cooperate for Marty Steinfeldt. What does that tell you about Kent William Sprouse? It tells you he's a cold-blooded murderer.

"It took 30 years for him to kill Pedro Moreno and it only took him 2 minutes and 19 seconds to kill again. What does that tell you?" Maxfield told the jurors, noting that Sprouse's drug use should be considered aggravating, not mitigating.

Sprouse's rights had been protected throughout the entire process, Maxfield continued. "Now it's time to protect the victims." A verdict in favor of the death sentence would not put blood on the jurors' hands, but would be on Sprouse's own hands, Maxfield said.

"Your verdict has to be heard in this case. Your verdict has to tell everyone in Ellis County that 'yes,' if you kill a police officer in the line of duty that 'yes,' you will get the death penalty. . Do it for the police officers out here, for the victims, for the citizens of Ellis County," he said.

 
 

In the Court of Criminal Appeals of Texas

No. AP-74,933

Kent William Sprouse, Appellant
v.
The State of Texas

On Direct Appeal from Ellis County

Price, J., delivered the opinion for a unanimous Court.

O P I N I O N

In February 2004, a jury convicted appellant of a capital murder committed on October 6, 2002. (1) Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. (2) Direct appeal to this Court is automatic. (3) After reviewing appellant's fourteen points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

FACTS

On October 6, 2002, appellant stopped at a gas station and food mart in Ferris, Texas. When he entered the store to make his purchases he had a shotgun hanging from his shoulder. A short time after returning to his vehicle, appellant fired his weapon in the direction of two men at a pay telephone on the premises. Startled by the shot, another customer, Brad Carroll, asked appellant if he was "okay." Appellant responded that the gun was not real and asked Carroll if he would help him get his car started. Carroll agreed and pulled his truck in front of appellant's car to use booster cables. While appellant was working on his car, Carroll noticed several boxes of buckshot in appellant's vehicle, determined that the gun was real, and decided to leave. As Carroll drove away, he heard another gun shot. When he turned to look, he saw a bleeding man lying on the ground, and appellant was pointing his shotgun in the man's direction. Just after he left the property, Carroll saw a police officer's car pull into the station. He then heard two more shotgun blasts and pistol fire.

While waiting to get diesel gasoline, Brandon O'Neill saw appellant working on his vehicle and Pedro Moreno filling his truck with gas. O'Neill noticed that appellant appeared to speak to Moreno, but Moreno did not respond. Appellant then reached into his vehicle, pulled out a gun, and shot Moreno.

In response to a 911 call, Officer Harry Marvin Steinfeldt, III, dressed in a police uniform and driving a police vehicle, responded to the shooting at the gas station. When he arrived at the station, Steinfeldt first noticed Moreno on the ground and then turned toward appellant's car, at which time appellant shot Steinfeldt twice. Steinfeldt returned fire after he hit the ground. After Steinfeldt collapsed, appellant walked to the side of the food mart. As appellant was walking, a second officer, Brad Lindsey, arrived on the scene and managed to take him into custody without further incident.

Moreno and Steinfeldt both died from their injuries. Several witnesses stated that appellant showed no emotion and was rather nonchalant throughout the incident. In the ambulance on the way to the hospital to receive treatment for the wounds he suffered in the exchange of gunfire, appellant gave his name and address to the officer accompanying him. Appellant then stated several times without prompting that he had killed an undercover officer at the gas pumps and had shot a second officer in uniform.

The doctor who treated appellant thought that he was under the influence of drugs when he was admitted, and subsequent testing revealed that appellant had ingested methamphetamines within the forty-eight hours preceding his arrival at the hospital. A trauma nurse who attended to appellant at the hospital stated that appellant was belligerent, swearing, and uncooperative regarding the medical care he was receiving. She also stated that appellant repeated that "two cops got whacked."

In response to the State's case on guilt, appellant called several witnesses who testified to his non-violent nature, but who also opined that appellant was mentally ill. One witness, who claimed to know appellant "pretty well," testified that he never acted in a violent manner. However, some things that appellant had told her made her suspect that he was mentally ill long before the instant offense occurred. She stated that appellant had been hospitalized at one point and had told her that he saw dead people. She also often saw appellant talking to himself. Another witness, who had known appellant's family for forty years and had spent a couple of weeks with them every year around Easter, stated that appellant behaved very differently from normal during Easter 2002-he had bursts of anger, saw things that did not exist, heard voices giving him commands, and said that everyone was out to get him.

Appellant's mother testified that appellant's behavior began to change around Christmas 2001. She stated that he was frightened and upset, thought that people were talking to him through the television, and thought that the CIA and FBI wanted to kill him. Appellant's mother was so concerned that, around April or May 2002, she had appellant committed to a mental hospital when he refused to see a doctor on his own, but he was back out on the street after seventy-two hours. She noted that appellant's condition only worsened after that time.

Dr. Jaye Douglas Crowder, a psychiatrist appointed to examine appellant, testified that he interviewed appellant several times, as well as appellant's friends and family members. Crowder testified that appellant was psychotic each time he was interviewed. He also stated that appellant had an extensive history of psychotic behavior and delusional thinking. Crowder opined that, on the day of the offense, appellant was psychotic, paranoid, believed people were persecuting him, and did not understand the wrongfulness of his conduct.

The State called several witnesses to rebut appellant's case. Dr. Chris Bell, a surgery resident who treated appellant at the hospital on October 6, 2002, testified that appellant admitted using cocaine and amphetamines, and subsequent testing confirmed that amphetamines, methamphetamines, and cannabis were in appellant's system. Bell also testified that, while he felt appellant was under the influence of drugs when he was admitted to the hospital, he did not have the same impression when he talked to appellant later that week.

Dr. Lisa Clayton, a psychiatrist, testified that she interviewed appellant and that he exhibited no signs of psychotic behavior during the interview. In fact, appellant told her that he was not really paranoid. She ultimately concluded that appellant was not insane at the time of the murders. Clayton did not talk with appellant's friends or family members.

Two detention officers at Ellis County Jail testified that they had regular contact with appellant during his incarceration, and they never saw him agitated, pacing, or talking to himself. The nurse at the jail testified that appellant received antibiotics and pain medication, and just prior to trial, he received an antidepressant and sleep aid. She also testified that there was a period of time during which appellant was prescribed a drug that she thought was an anti-psychotic medication; however, she never saw appellant agitated, pacing, or muttering to himself.

Finally, Dr. Richard Rogers, a forensic psychologist who had written a book about conducting insanity evaluations, testified that he spent approximately eleven hours with appellant while evaluating him. Rogers testified that the most likely diagnosis for appellant at the time of the murders was a substance-induced psychotic disorder with paranoid delusions, and he opined that appellant understood the wrongfulness of his acts on October 6, 2002. Rogers admitted that he had not talked to appellant's friends or family members and admitted that he was not aware that appellant behaved strangely in the days before the murders. Nonetheless, he opined that, despite appellant's mental illness, his psychosis did not manifest itself on the day of the murders and, therefore, did not prevent appellant from understanding that his conduct was wrong.

At punishment, the State called former Ellis County Deputy Sheriff Adam Irwinsky who testified that he and his trainee were called out to appellant's home on July 22, 2002, with regard to a "disturbance with possibly a gun involved." When Irwinsky asked appellant to step outside, appellant responded that he would not come out because they would jump on him. Irwinsky assured appellant that they would not jump on him, and appellant laid down a .357 magnum handgun he was holding and came out. Appellant told the officers that he and his parents were having an argument that day. No arrests were made, no guns were seized, and appellant did leave the premises with a friend.

SUFFICIENCY OF THE EVIDENCE

Appellant claims in his fourth point of error that the evidence presented at trial was legally insufficient to support the jury's finding that he would be a continuing threat to society. (4) Specifically, appellant argues that "[t]here was not one scintilla of evidence outside of the offense itself that dealt with the probability that [he] would be a future danger." In reviewing the sufficiency of the evidence at punishment, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have believed beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. (5)

Viewed in the light most favorable to the verdict, the evidence presented at trial of the instant offense showed that appellant, without hesitation or emotion, shot one person he decided was an undercover police officer and a second person he knew was a police officer. He then repeatedly professed to various individuals that he had shot two officers. The evidence also showed that appellant had ingested drugs prior to the offense and was mentally ill.

Further, despite appellant's claims to the contrary, evidence of the crime itself was not the only evidence presented. During the guilt phase of trial, appellant presented quite a bit of evidence concerning the mental illness from which he allegedly suffered. Although presented as an insanity defense for this crime, a rational jury could have concluded that appellant's illness would affect his later behavior and cause him to behave in a manner that constituted a threat to society - both in prison and in free society. (6) The same conclusions can be drawn concerning appellant's drug use and any combination of his drug use and his mental illness. Also, the State presented evidence completely apart from the instant offense showing that officers had been called to appellant's house when he was acting in a threatening manner toward his family. Given this presentation, we hold that the evidence is legally sufficient to support the jury's affirmative answer to the future-dangerousness issue. Point of error four is overruled.

In point of error fourteen, appellant asserts that the evidence is insufficient to support the jury's "no" answer to the mitigation question. This Court does not conduct such a sufficiency review. (7) Point of error fourteen is overruled.

EXPERT TESTIMONY

In his first point of error, appellant complains that the trial court erred in allowing expert testimony without first providing him proper notice. Appellant asserts that this error harmed him and violated his due process rights under the federal and state constitutions. Appellant makes a three-part complaint. First, appellant complains that A.P. Merillat, senior investigator for the special-prosecution unit in Huntsville, was allowed to testify as an expert even though he was not designated as an expert. Second, appellant asserts that the lack of notice deprived him of the ability to prepare. Third, he complains that the lack of notice deprived him of an opportunity to file a challenge to the expert.

The pretrial order issued by the judge of the trial court in every criminal case in his court required both the State and the defense to give notice of any expert, without written request from the opposing party, not later than the 20th day before the date the trial was to begin. This notice was to include the witness's area of expertise and a brief summary of the witness's conclusions. At the punishment phase of trial, appellant conceded that Merillat had been listed on the regular witness list; however, he complained that Merillat was not designated as an expert even though the testimony the State sought to elicit from him was that of an expert, i.e. specialized knowledge gained through practical experience in his employment as a peace officer. Appellant specifically objected that he did not get notice that Merillat was an expert. Therefore, he asserted that he was not able to prepare or to file a challenge to the witness. The court noted that the hearing the court was about to hold regarding appellant's objection to the witness constituted a "challenge" to the witness.

During the hearing, which was held outside the presence of the jury, Merillat testified that he was a peace officer who worked as a senior criminal investigator for the special prosecution unit out of Huntsville. He explained that the office was charged with the responsibility for prosecuting all crimes that occur within the prison system, crimes that are committed by employees of the prison system, and crimes committed in the free world but that originated from a conspiracy within the prison. He explained the general classification system within the prison and the potential for and existence of violence within that system. Merillat also specifically noted that inmates sentenced to life in prison after a conviction for capital murder: were not segregated from other inmates; were not restricted any more than other prisoners from moving to and from their cell blocks to other areas of the prison; were not labeled as capital murderers in any way; had access to doctors, nurses, and teachers; and, had visitation rights.

After the hearing, the trial court agreed that much of the testimony the State sought to elicit was expert testimony, and the State's failure to designate the witness as an expert barred the testimony in this case. In light of this finding, the court had the court reporter prepare a rough transcript of the proceedings, and the judge thereafter marked those questions that he determined were "fact" questions and, therefore, not expert testimony. Appellant renewed his "previously stated" objection to the testimony. Merillat was then allowed to testify in front of the jury regarding only those questions the court had marked as "fact" questions. Merillat gave his name and described his job. He then testified that capital murderers who receive a life sentence: are not segregated from other inmates; are not restricted any more than other prisoners from moving to and from their cell blocks to other areas of the prison; are not labeled as capital murderers in any way; have access to doctors, nurses, and teachers; and, have visitation rights.

Appellant fails to note in his brief that his objection to Merillat's testimony was in large part sustained. He also fails to specifically argue how any of the court-permitted questions elicited expert testimony. In fact, during final argument, defense counsel stated that Merillat "said there are prisons and there are rules" and "[the witness] didn't bring you anything you didn't already know by watching the news." By this argument, counsel, in effect, told the jury and the court that he did not believe the remaining testimony amounted to expert testimony.

Further, to the extent that the "fact" questions the court allowed did elicit expert testimony, the testimony did not harm appellant. Appellant conceded that Merillat was listed as a regular witness, and appellant was afforded an opportunity to challenge the witness through a hearing. Appellant could have contacted Merillat to attempt to gauge the substance of his testimony, and appellant could have attempted to get his own witness to counter Merillat's testimony. Finally, appellant could have asked for a continuance to investigate the matter. Appellant's first point of error is overruled.

APPELLATE COUNSEL

Appellant complains in his second point of error that his federal and state constitutional rights were violated when the trial court did "not appoint[] counsel for appeal pursuant to Article 26.052(k) of the Texas Code of Criminal Procedure and such error denied meaningful review on appeal." Appellant's argument is three-fold. First, appellant argues that counsel was not properly appointed under Article 26.052(k). Second, because counsel was not properly appointed under the statute, appellant was deprived of counsel during the critical thirty-day period after sentencing in which counsel could have filed a motion for new trial and developed the record concerning any claims of ineffective assistance of counsel. Finally, because counsel could not develop the record regarding any ineffective assistance claims, appellant was deprived of the opportunity of raising these claims on appeal. A recitation of the applicable law and the facts involved will be helpful to a resolution of the issue.

Article 26.04 sets out the procedures for appointing counsel in criminal cases. Article 26.04(j)(2) states that an attorney appointed under this article shall:

represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record.

Article 26.04(a) provides that any procedures adopted under this article must be consistent with the procedures outlined in other articles, including Article 26.052, which governs the appointment of counsel in death-penalty cases. The pertinent parts of Article 26.052 provide that:

(j) As soon as practicable after a death sentence is imposed in a capital felony case, the presiding judge of the convicting court shall appoint counsel to represent an indigent defendant on appeal and to apply for a writ of certiorari, if appropriate.

(k) The court may not appoint an attorney as counsel on appeal if the attorney represented the defendant at trial, unless:

(1) the defendant and the attorney request the appointment on the record; and

(2) the court finds good cause to make the appointment.

Less than two weeks after the commission of the instant offense, attorneys James R. Jenkins and Joe Gallo were appointed to represent appellant at trial. According to the standing pretrial order issued by the court, defense counsel were expected to, among other things, "[i]n the event of conviction, appeal or file a written Waiver of Appeal." On February 26, 2004, appellant was convicted by a jury and sentenced to death, and on March 23, Jenkins and Gallo filed a notice of appeal and designated the record on appeal. No motion for new trial was filed in the thirty days after sentencing.

Without complaint from appellant, Jenkins, or Gallo, the appellate timeline proceeded, and defense counsels' brief was initially due in this Court on September 2, 2004. On August 30, citing to the length of the record and the complexity of the issues involved, counsel requested a 120-day extension on the filing deadline. This Court granted the request and set a new due date of January 3, 2005. However, on November 4, 2004, more than two months after they filed their request for an extension, Jenkins and Gallo filed in the trial court a motion to substitute counsel. They asserted in the motion that they had just been made aware of Article 26.052. Specifically, they noted that Article 26.052(k) states that the trial court cannot appoint as appellate counsel the same counsel that represented a defendant at trial unless other enumerated conditions were met. Counsel asserted in their motion for substitution that these conditions had not been met. They also asserted that continuing as appellate counsel would not be in appellant's best interest because they were not appellate specialists. On November 12, 2004, acknowledging the problem of allowing Jenkins and Gallo to continue representing appellant, the trial court granted the motion to substitute counsel and appointed attorney Mark Griffith to take their place.

On December 1, 2004, Griffith filed in this Court a "Motion to Abate Appeal and Request for Leave to File Motion for New Trial." In the motion, Griffith claimed that, had he been appointed immediately after appellant was convicted and sentenced as required by Article 26.052, he would have filed a motion for new trial within the thirty-day period provided for such a filing. Noting that one of the purposes for filing a motion for new trial is to adduce facts not in the record for purposes of appeal, (8) counsel argued that, having reviewed the reporter's transcript of the trial, said transcript shows "a very real possibility of ineffective assistance of counsel during the trial of this case." Specifically, he pointed out that, during the penalty phase of trial, "counsel did not call any witnesses and only briefly cross-examined one of the three witnesses called by the State." He asserted that he should have been given the opportunity by way of an out-of-time motion for new trial to investigate and adduce facts not in the record regarding any claim of ineffective assistance of counsel.

Given this framework, we can now return to the point of error raised on direct appeal. Appellant first argues that the appointment of appellate counsel was in violation of Article 26.052(k). Article 26.052(k) does not expressly forbid the appointment of trial counsel to continue as appellate counsel. It does require certain conditions be met, though, before such appointment is allowed. These conditions were not met in this case. Therefore, the court did initially violate the dictates of Article 26.052(k) in requiring counsel to continue their appointment on appeal. (9)

Appellant next asserts that this error resulted in harm to him because he was deprived of counsel during the critical thirty-day period after sentencing in which counsel could have filed a motion for new trial. Specifically, he asserts that, because he was deprived of counsel, he was deprived of the opportunity to raise properly developed ineffective-assistance claims on appeal. Contrary to appellant's claim, he was not deprived of counsel during the period of time in which counsel could have filed a motion for new trial. First, Article 26.052 states that the trial court shall appoint counsel on appeal, "[a]s soon as practicable after a death sentence is imposed," without specifying a time limit. Second, whether properly appointed under the statute or not, qualified counsel did represent appellant during the period of time in which a motion for new trial could have been filed. Neither the fact that they did not file a motion for new trial nor that new counsel might have raised an ineffective-assistance claim in such a motion changes the fact that appellant was not deprived of counsel during this period.

Likewise, appellant's assertion that he was deprived of the opportunity of raising properly developed ineffective assistance claims on appeal does not amount to harm resulting from the trial court's error under Article 26.052. Griffith argued in his motion to abate the appeal that he could and would have raised ineffective assistance of counsel in a motion for new trial. He came to this conclusion after reviewing the record in the case and reflecting on counsels' performance at trial. However, the reporter did not finish transcribing the record in the case until summer 2004-more than sixty days after the time had expired to file a motion for new trial. Therefore, had Griffith been appointed during the period in which he could have filed a motion for new trial, he would not have had the benefit of the written record on which to base his motion.

Given the circumstances, the record does not show that appellant was harmed by the trial court's initial violation of Article 26.052(k). (10) Point of error two is overruled.

CONSTITUTIONALITY

Appellant asserts in his third point of error that the death penalty as applied in this case violates the Eighth Amendment to the United States Constitution because, due to his mental illness, he suffered from a disability in reasoning, judgment, and control of his impulses. Therefore, as with the mentally retarded, appellant argues, the State should be barred from executing him under Atkins v. Virginia, 536 U.S. 304 (2002). However, neither this Court nor the United States Supreme Court has extended the holding in Atkins to protect the mentally ill, and we will not do so in this case. Appellant's third point of error is overruled.

In his fifth point of error, appellant asserts that the death penalty scheme is unconstitutional because it fails to provide a meaningful appellate review of mitigating evidence or a re-weighing of aggravating and mitigating circumstances. Appellant also asserts that the statute is unconstitutional because Texas law does not provide for a comparative proportionality review. The arguments appellant makes in his multifarious point of error have been previously raised and rejected by this Court. (11) Appellant raises no novel argument or otherwise persuades us to revisit these holdings.

Appellant also asserts in his fifth point of error that there is no meaningful review of the future dangerousness issue due to this Court's ruling in Martinez v. State, (12) wherein the Court found the future dangerousness evidence legally sufficient based only on the facts of the crime. Again, appellant has failed to make a novel argument or otherwise persuade us to revisit this holding. Appellant's fifth point of error is overruled.

In his sixth point of error, appellant asserts that Article 37.071's "definition of 'mitigating evidence' is facially unconstitutional because it limits the Eighth Amendment concept of 'mitigation' to factors that render a capital defendant less morally 'blameworthy'" for the commission of a capital murder. We have previously rejected this argument. (13) Point of error six is overruled.

Appellant argues in his seventh point of error that Article 37.071 is unconstitutional because the aggravating factors used in the statute are vague and do not properly channel the sentencer's discretion. Specifically, appellant asserts that the terms "probability," "criminal acts of violence," and "continuing threat to society" should be defined. This Court has previously decided this claim adversely to appellant. (14) Point of error seven is overruled.

In point of error eight, appellant contends that the mitigation issue is unconstitutional under the Eighth and Fourteenth Amendments because it permits the very type of open-ended discretion condemned by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972). This Court has addressed and rejected this issue. (15) Appellant's eighth point of error is overruled.

In his ninth point of error, appellant asserts that the capital-sentencing statute is unconstitutional because it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have previously decided this issue adversely to appellant. (16) Appellant's ninth point of error is overruled.

In his tenth point of error, appellant asserts that the "10/12" rule of Article 37.071 violates the constitution. This Court has previously considered and rejected this claim, and appellant has given us no reason to reconsider it here. (17) Appellant's tenth point of error is overruled.

In his multifarious eleventh point of error, appellant contends that the death penalty, as it is presently administered, amounts to cruel and unusual punishment because: (1) it simultaneously restricts and allows unlimited or "open-ended" juror discretion to impose the death penalty; and (2) the drugs used in lethal injection cause unnecessary cruelty, suffering, and pain. In his twelfth point of error, appellant makes the same argument under the Texas Constitution. This Court has addressed and rejected the complaint regarding open-ended juror discretion. (18) As to the second complaint, appellant has failed to provide anything other than references to general articles and studies. He has provided nothing regarding the protocol to be used in his situation. Thus, appellant's claim is not sufficiently developed, and we cannot address it. (19) Furthermore, the method in which the lethal injection is currently administered is not necessarily determinative of the way it will be administered in the future. Appellant's eleventh and twelfth points of error are overruled.

In his thirteenth point of error, appellant claims that the mitigation question submitted to the jury pursuant to Article 37.071, section 2(e), is unconstitutional because the statute does not require the State to prove beyond a reasonable doubt that there was insufficient mitigating evidence to support a life sentence. We have previously rejected this claim and appellant has given us no reason to revisit the issue here. (20) Appellant's thirteenth point of error is overruled.

We affirm the judgment of the trial court.

Delivered: January 31, 2007

Do Not Publish

1. Tex. Penal Code Ann. 19.03(a).

2. Tex. Code Crim. Proc. art. 37.071, 2(g). Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure.

3. Art. 37.071, 2(h).

4. See Art. 37.071, 2(b)(1).

5. Ross v. State, 133 S.W.3d 618, 621 (Tex. Crim. App. 2004) (applying Jackson v. Virginia, 443 U.S. 307 (1979), standard to review evidence on "future dangerousness" punishment issue); see also Allridge v. State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991).

6. See, e.g., Penry v. Lynaugh, 492 U.S. 302 (1989)(recognizing that the same evidence could be considered both aggravating and mitigating).

7. Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005), cert. denied, 126 S.Ct. 2982 (2006); McGinn v. State, 961 S.W.2d 161 (Tex. Crim. App. 1998).

8. See Tex. R. App. P. 21.2.

9. Although appellant asserts that the harm caused was of constitutional dimension, we note that the failure to adhere to statutory procedures that serve to protect a constitutional provision is a violation of a statute, not a violation of the constitutional provision itself. See Hughes v. State, 24 S.W.3d 833, 837 n.2 (Tex. Crim. App. 2000); Ex parte Long, 910 S.W.2d 485, 486 (Tex. Crim. App. 1995).

10. Tex. R. App. P. 44.2(b)

11. See Russeau, 171 S.W.3d at 886 (noting that we have rejected the claim that refusing to review the sufficiency of mitigating evidence deprives a defendant of "meaningful appellate review"); McGinn, 961 S.W.2d at 170 (noting that Texas is not a "weighing" state; therefore, a reviewing court does not re-weigh mitigating and aggravating factors on appeal); Ibarra v. State, 11 S.W.3d 189, 198 (Tex. Crim. App. 1999)(holding that the Due Process Clause does not require a comparative proportionality review).

12. Martinez, 924 S.W.2d 693 (Tex. Crim. App. 1996).

13. See Blue v. State, 125 S.W.3d 491, 504-05 (Tex. Crim. App. 2003), cert. denied, 543 U.S. 853 (2004).

14. See Blue, 125 S.W.3d at 505.

15. See Moore v. State, 999 S.W.2d 385, 408 (Tex. Crim. App. 1999).

16. See Russeau, 171 S.W.3d at 886.

17. See Escamilla v. State, 143 S.W.3d 814, 828 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005).

18. See Escamilla, 143 S.W.3d at 828.

19. See Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005).

20. See Perry v. State, 158 S.W.3d 438, 446-47 (Tex. Crim. App. 2004), cert. denied, 126 S.Ct. 416 (2005).

 

 

 
 
 
 
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