Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App.
1995) (Direct Appeal).
Defendant was convicted in the 179th District
Court, Harris County, Michael Wilkinson, J., of capital murder
and sentenced to death. He appealed. The Court of Criminal
Appeals, Meyers, J., held that: (1) evidence supported
convictions; (2) photographs of victims' bodies were admissible;
(3) evidence supported finding of future dangerousness; (4)
death penalty article was constitutional; and (5) defendant's
voluntary but mistaken choice not to allow his attorney to
present mitigating evidence provided no grounds for reversal.
Affirmed. Clinton, J., concurred in the result. Baird, J.,
concurred with note.
MEYERS, Judge.
In February 1993, appellant was tried and
convicted under Texas Penal Code § 19.03 of capital murder. The
offense, a double murder, was committed on September 16, 1991.
The jury affirmatively answered the special issue submitted
under Article 37.071 § 2(b)(1).FN1 Appellant was sentenced to
death as mandated by Article 37.071 § 2(g). Article 37.071 §
2(h) provides direct appeal to this court. Appellant raises
thirteen points of error. We affirm.
I. Sufficiency of Evidence
In his first point of error appellant
challenges the sufficiency of the evidence to establish his
guilt beyond a reasonable doubt of capital murder. In point of
error four appellant challenges the sufficiency of the evidence
to affirmatively answer the first special issue (continuing
danger). Art. 37.071 § 2(b)(1).
Appellant committed the offense sixteen days
after the amended version of Article 37.071 became effective on
September 1, 1991. The deliberateness special issue was replaced
with the continuing danger to society special issue. Sufficiency
reviews of either the guilt-innocence or sentencing stages of a
trial require that, while viewing the evidence in the light most
favorable to the verdict, we ask whether evidence exists from
which any rational trier of fact could have made the challenged
finding beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Nelson v.
State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied,
510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993).
The jury is the sole judge of the weight of
the evidence and may choose to believe all, some, or none of it.
Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991).
Reconciliation of conflicts in the evidence is within the
exclusive province of the jury. Losada v. State, 721 S.W.2d 305,
309 (Tex.Crim.App.1986). Because the arguments raised are best
understood in context of the evidence presented at appellant's
trial, we briefly review the facts of the offense as established
at trial and in the light most favorable to the verdict.
The Evidence
Shortly before 2:00 p.m. on September 16,
1991, Melody Flowers received a telephone call at her apartment,
number 88, from her sister. Melody informed her sister that she
had just returned from an errand and was preparing herself and
her two infant children Patrick, two years old, and Morgan, one
year old, for a nap. Around 3:00 p.m. Morgan was discovered
crying at the door of her apartment by a neighbor, Henderson.
Henderson thought the situation odd and attempted to find Melody.
Unable to find her, he peeked into her window
and saw blood. He went to get the apartment manager. The manager
entered the apartment, saw blood everywhere and immediately
called the police. When the police arrived, they discovered the
bodies of Melody and Patrick submerged in the bathtub. Patrick
had been stabbed to death. Melody had been bludgeoned with a
hammer, strangled, stomped, and stabbed.
Another neighbor, Thomas, who had been
sitting outside, informed the police that between 2:15 and 3:00
p.m. he had seen appellant walking toward a field near the
apartment complex. Thomas stated that appellant had a bloody
towel wrapped around one hand and was carrying a “Fiesta”
grocery store bag with a cardboard soda carton sticking out of
it. When Thomas called out in greeting to him, appellant ignored
him and continued in a hurried pace. Thomas told the police that
when appellant reached the corner of the building, he stopped,
peeked around the corner, and looked behind him before
continuing.
Henderson testified that soon after the
bodies were discovered, he saw appellant walking toward his
apartment with a bloody towel wrapped around his hand. Henderson
asked him if he had heard about Melody Flowers. Appellant
answered “no.” Henderson testified that he told appellant that
“something” had happened to Melody Flowers. Henderson specified
that “something” had happened because he did not know at that
point what had happened.
D. Mosley testified that her middle school
let out at 2:40 p.m. and that when walking home, she saw
appellant walking along the road adjacent to the apartments and
an open field. Appellant was not carrying anything. D. Mosley
allowed herself into her apartment, number 90, where she lived
with her mother and appellant. Appellant arrived a few minutes
later. His hand was wrapped in a bloody towel.
When D. Mosley asked about the injury,
appellant ignored the question, but a few minutes later
appellant yelled from the kitchen that he had at that moment cut
his hand. Appellant told D. Mosley that he thought something was
wrong with Patrick and Melody Flowers.
When the police knocked at the front door,
appellant answered the door and immediately stated “I didn't
hurt her.” When the police asked him what had happened to his
hand appellant answered that he had cut it while slicing sausage.
D. Mosley testified that she, not appellant, had sliced the
sausage, that was cooking when the police arrived. Appellant's
cut required nine stitches.
When L. Mosley arrived home, she consented to
a police search of her apartment. The police discovered a bloody
teddy-bear towel, a bloody Garfield towel, and a bloody blouse
in a trash bag in Mosley's hall closet. L. Mosley identified the
teddy-bear towel as hers, but denied ownership of the Garfield
towel and the blouse. L. Mosley informed the police that her
friend, Melody Flowers, owned Garfield towels and a blouse like
the one found in her trash.
T. Knowles, Melody Flowers' boy-friend,
testified that Melody kept a set of Garfield towels like the one
found in Mosley's apartment. He testified that he had given the
bloody blouse found in L. Mosley's closet to Melody.
Searching the field between the apartment
complex and the middle school, the police discovered a “Fiesta”
grocery sack with a soda carton sticking out of it under a bush.
It contained a bloody piece of cord, a pair of bloody shoes, a
pair of bloody socks, bloodied shorts and a bloodied shirt. L.
Mosley testified that when she had left for work around 2:00 p.m.
on the day of the offense, appellant had been wearing unsoiled
clothes identical to those discovered in the bag. She identified
the shoes as some she had given to appellant.
A. Flowers, the eighteen-year-old niece of
Melody Flowers, testified that when she had spent the summer
with her aunt, there had been several encounters between
appellant and her aunt. On one occasion appellant had accosted
A. Flowers and her aunt with lewd comments about their attire.
On another occasion she and her aunt had been
in the living-room when they heard a noise in the bedroom. They
discovered appellant in the bedroom. When Melody, naturally
upset by the intrusion, demanded to know what appellant was
doing in her home, he laughed and responded that she was scared.
A. Flowers also recounted that on another occasion her aunt, her
nieces and nephews, and she were lying on her aunt's bed
watching television.
After a few hours, at about 11:00 p.m., they
were startled by a rapping on the wall. To their horror, they
discovered appellant hiding in the closet of the bedroom. He had
been there at least three hours. Again appellant responded to
Melody's visible and verbal anger by remarking that she was
scared.
S. Flowers, eight-year-old daughter of Melody,
testified that on her birthday, she had been hiding balloons in
her mother's bedroom closet and was startled by appellant
standing just outside of the sliding door of the bedroom. He was
looking into the bedroom. When she returned with her mother,
they found appellant in the bedroom closet. T. Knowles testified
that Melody Flowers had expressed fear of appellant and that he
had warned her to stay away from him.
Dr. T.J. Brown, pathologist, testified that
Melody Flowers suffered four fatal injuries, each of which could
have caused her death. She sustained blunt trauma to the head. A
hammer head with human hair was found in the victims' apartment.
The victim suffered blunt trauma which crushed her neck bones;
she was stomped on the chest and neck.
She suffered asphyxia due to both manual and
ligature strangulation; a bloody cord was found in the “Fiesta”
grocery bag. Melody was also fatally stabbed twice in the chest.
The bloodied condition of the victims' apartment and the
multiple ligature marks on Melody's neck indicated that she had
struggled fiercely for her life. The strangulation, beatings,
blunt trauma to the head, and the stabbing all occurred before
Melody Flowers died.
Patrick Flowers' death was caused by two stab
wounds to the chest, one of which penetrated the heart. Because
of the profuse bleeding caused by the wound to the heart,
Patrick probably died within a minute of receiving the wound.
A blood splatter expert testified that there
was no evidence of blood splatter in the master-bedroom, only a
blood soak on the bed consistent with someone having been
stabbed on the bed. In the childrens' bedroom there was blood a
soak and a drag mark consistent with a small body having been
stabbed on the bed and then dragged off. In the living-room the
blood stains indicated that someone had fallen, bleeding, and
was there beaten or stabbed. Blood splattering in the bathroom
was consistent with someone having been bludgeoned there.
Blood, semen and DNA testing was mostly
inconclusive. Appellant could neither be positively connected to
the offense through this scientific evidence nor be positively
ruled out as a suspect. However, DNA testing did establish that
blood taken from one of the socks in the grocery store bag
matched the blood of Melody Flowers, but could not have been
appellant's own blood.
Evidentiary Sufficiency of Guilt
In point of error one, appellant alleged the
State's evidence did not establish beyond a reasonable doubt
that he committed the offense. In re Winship, 397 U.S. 358, 90
S.Ct. 1068, 25 L.Ed.2d 368 (1970); Tex.Penal Code § 2.01.
Appellant acknowledges that in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991),
we abandoned the reasonable alternative hypotheses analysis for
reviewing the sufficiency of circumstantial evidence, but
nevertheless urges us to return to that analysis when reviewing
circumstantial evidence.
He argues that the reasonable alternative
hypotheses analysis is more workable, meaningful, and accurate
than the Jackson standard. After careful review of appellant's
arguments we remain convinced that our decision to abandon the
alternative hypotheses analysis was correct and refer appellant
to our thorough discussion of our decision. Geesa, 820 S.W.2d at
155-161.
Though the evidence against appellant was
entirely circumstantial, it was nevertheless extremely
incriminating: Appellant had stalked the victim, several times
entering her apartment and hiding for hours in her closet. He
apparently took delight in frightening her. He was at the scene
of the crime at the time of the offense with a serious cut on
his hand, and acting peculiarly.
The victim's bloodied clothes were found in
his apartment, and his own blood stained clothes, soiled with
the victim's blood, were found in a vacant lot near his
apartment. Appellant was seen discarding the bag in which his
bloodied clothes were discovered around the time of the murders.
The evidence supports a rational finding, beyond a reasonable
doubt, that appellant committed the charged offense. Jackson,
443 U.S. at 319, 99 S.Ct. at 2789. Appellant's first point of
error is overruled.
Evidentiary Sufficiency at Sentencing
Article 37.071 § 2(b)(1) requires the jury to
answer “whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society.” The State presented no evidence
of appellant's danger to society besides the facts of the
offense; but we have held that the circumstances of the offense
and the facts surrounding it may furnish greater probative
evidence than any other evidence regarding the probability of
future acts of violence and may alone establish an affirmative
answer to the special issues. Flores v. State, 871 S.W.2d 714,
716 (Tex.Crim.App.1993) cert. denied, 513 U.S. 926, 115 S.Ct.
313, 130 L.Ed.2d 276 (1994).
First, appellant argues that our precedent,
holding that the facts of the offense alone may be sufficient to
establish an affirmative answer to the dangerousness special
issues, is inapplicable to his case. Appellant notes that under
the previous version of Article 37.071, when a jury considered
the danger posed to society by a defendant, they had already
determined that he had committed the murder deliberately.
Appellant argues that since a finding of deliberation is no
longer required, see Article 37.071 § 2(b), the facts of the
offense may no longer alone support, beyond a reasonable doubt,
the finding that a defendant is a future danger.
This argument has some merit in terms of the
weight of the evidence; a murder committed deliberately is more
probative of future dangerousness than evidence of a murder
committed intentionally. But, the weight given to particular
evidence is within an individual juror's prerogative and not an
appropriate consideration in reviewing the sufficiency of
evidence. Chambers, 805 S.W.2d at 461.
Since an appellate court may not properly
assign weight to particular evidence, it would have been
inappropriate for us to hold that evidence of an offense
committed with deliberation can support a finding of future
dangerousness merely on the assumption that it is more probative
of future dangerousness than evidence of an offense committed
only intentionally.
Moreover, nothing in that precedent indicates
that the finding of deliberation was a significant consideration
in our holdings. We do not deny that evidence of a murder
committed with calculation, deliberation, or premeditation is
evidence of future dangerousness. We merely reject the
suggestion that the absence of a formal finding of deliberation
by itself renders the facts of the offense alone incapable of
supporting a finding that a defendant is a continuing threat to
society. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).
Next, appellant argues that at most the
evidence presents only an isolated incident of rage and proved
nothing about his potential for future acts of violence.
Appellant ignores that the extreme brutality and violence of his
offense betray a “most dangerous aberration of character which
would support a jury's affirmative finding” that he is a
continuing danger. Tucker v. State, 771 S.W.2d 523, 527 (Tex.Crim.App.1988),
cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578
(1989).
Appellant heinously murdered M. Flowers and
her two-year-old son. M. Flowers' murder involved needless and
vicious brutality; Appellant stabbed, strangled, bludgeoned her
head with the claw of a hammer, and crushed her neck by stomping
it. The condition of the apartment suggested that appellant
followed M. Flowers, stabbing and beating her, throughout her
apartment as she apparently struggled for her life and the lives
of her children.
The murder of P. Flowers, an infant still
learning to speak, was wanton; the infant was fatally stabbed
through the heart as he lay on his bed and his body was dragged
to the bathroom where it was tossed in the bathtub atop his
mother's corpse. He was stabbed eight times.
The jury could rationally conclude from the
results of appellant's isolated incident of rage that his rage
is of such an uncontrollable and extreme nature that he is a
continuing danger to society. See, Joiner v. State, 825 S.W.2d
701, 704 (Tex.Crim.App.1992), cert. denied, 509 U.S. 925, 113
S.Ct. 3044, 125 L.Ed.2d 729 (1993) (One victim was found to have
been stabbed four times in the chest and further received a
series of lacerations on her neck.
The other victim suffered forty-one stab
wounds to her chest, blunt force trauma to her head, lacerations
to the head, and, her throat had been slashed); Cass v. State,
676 S.W.2d 589, 593 (Tex.Crim.App.1984) (Shocking circumstances
of the offense established continuing danger to society); King
v. State, 631 S.W.2d 486 (Tex.Crim.App.), cert. denied, 459 U.S.
928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982) (remorseless brutality
of the manner in which he obliterated another human life evinced
continuing danger to society). Appellant's fourth point of error
is overruled.
Jury Selection
In point two, appellant argues that the trial
court committed reversible error in not permitting him to
question the venire regarding the mandatory imprisonment of
thirty-five years if he was given a life sentence. Appellant
argues on appeal that the question was proper and necessary to
the intelligent exercise of challenges for cause and peremptory
strikes. However, we have recently held that “[a]bsent a federal
constitutional requirement to the contrary, it will remain the
policy of Texas not to officially inform jurors of the actual
consequences of a life sentence.” Smith v. State, 898 S.W.2d
838, 849 (Tex.Crim.App.1995), Broxton v. State, 909 S.W.2d 912 (Tex.Crim.App.1995),
Reh'g denied, Broxton v. State, No. 71,488 (Nov. 15, 1995).
Accordingly, because jurors are not entitled
to consider these consequences in deliberating their verdict,
their attitude toward the mandatory imprisonment law about which
appellant wished to question them was irrelevant to the
intelligent exercise of peremptory challenges in the case.
Appellant's second point of error is overruled.
Video Tape and Photographs
Appellant avers in point of error three that
the trial court erred in admitting into evidence video
recordings and photographs of the bodies of the victims as they
were discovered. Appellant argues that the prejudicial nature of
the photographs greatly outweighed their probative value.
Tex.R.Crim.E. 403. The State argues that error was not preserved
for review and alternatively that the trial court did not abuse
its discretion because the prejudicial value of the evidence did
not outweigh its probative value.
Regarding the video recording, which
apparently depicts the scene of the crime as it was discovered,
we agree that appellant has not preserved error. When the video
recording was introduced appellant offered only a general
objection to the entire recording; on appeal he complains only
of the depiction of the victims' bodies, as found, in the
bathtub. When an exhibit contains both admissible and
inadmissible evidence, the objection must specifically refer to
the challenged material to apprise the trial court of the exact
objection. Brown v. State, 692 S.W.2d 497, 501 (Tex.Crim.App.1985).
Moreover, under Rule 50(d) of the Texas Rules
of Appellate Procedure, it is appellant's burden “to see that a
sufficient record is presented to show error requiring reversal.”
This means that appellant must designate for the record on
appeal all that is necessary for our review. See also
Tex.R.App.Proc. 51 and 53. The record does not contain the
original or certified copy of the video recording. Having failed
to enter a definite objection at trial and to designate a
sufficient record to comply with the rules of appellate
procedure, appellant presents no error for our review regarding
the video recording of which he complains.
The Texas Rules of Criminal Evidence, Rule
403 provides that although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury. Several factors may be considered in determining whether
the danger of unfair prejudice substantially outweighs the
probative value of photographs including ... the number of
exhibits offered, their gruesomeness, their detail, their size,
whether they are black and white or color, whether they are
close-up, whether the body is naked or clothed [, and] ... the
availability of other means of proof and the circumstances
unique to each individual case. Emery v. State, 881 S.W.2d 702,
710 (Tex.Crim.App.1994) (emphasis added), cert. denied, 513 U.S.
1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995) quoting Long v.
State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991), cert. denied,
505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992).
Ultimately, the admissibility of photographs over any challenge
is within the sound discretion of the trial judge. Jones v.
State, 843 S.W.2d 487, 500 (Tex.Crim.App.1992), cert. denied,
507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Narvaiz
v. State, 840 S.W.2d 415, 428-430 (Tex.Crim.App.1992); Burdine
v. State, 719 S.W.2d 309, 317 (Tex.Crim.App.1986).
The four photographs of which appellant
complains depict the victims' bodies as discovered in the
bathtub filled with bloodied water. Exhibit 99-MM focuses on the
body of Melody Flowers with part of Patrick Flowers' body
visible in the picture. Exhibit 99-NN depicts the corpse of P.
Flowers thrown atop his mother's corpse with his head submerged
in the bloody water. Exhibit 88-OO depicts the blanket which was
thrown over the bodies. And, exhibit 88-PP is a close-up of M.
Flowers' nude corpse; a stab wound to the chest is visible.
According to the briefs the original exhibits
were 8 x 10, color photographs presented together as a single
exhibit. Nothing was depicted in the photographs which was not
also included in the testimony of various witnesses. Appellant
does not allege any tampering, enhancement, or attempt by the
State to inflame, confuse, or mislead the jury in its
presentation of the photographs.
The photographs are gruesome. That is to say,
they are disagreeable to look at, but they depict nothing more
than the reality of the brutal crime committed. The photographs
are powerful visual evidence, probative of various aspects of
the State's theory of the offense including the brutality and
heinousness of the offense. Appellant must realize that it is
precisely the quality which we describe as “powerful” which
gives rise to his arguments that the photographs are
prejudicially inflammatory.
But when the power of the visible evidence
emanates from nothing more than what the defendant has himself
done we cannot hold that the trial court has abused its
discretion merely because it admitted the evidence. A trial
court does not err merely because it admits into evidence
photographs which are gruesome. Burdine, 719 S.W.2d at 316;
Narvaiz, 840 S.W.2d at 429. The trial court did not abuse its
discretion in admitting the video recording or photographs of
which appellant complains. Appellant's third point of error is
overruled.
In point of error five appellant argues that
Article 37.071 as amended is violative of the Eighth and
Fourteenth Amendments to the United States Constitution.
Appellant argues the deletion of the deliberateness special
issues FN3 regresses from the safeguards against “wanton” and
“freakish” application of the death penalty found in the former
Article 37.071, with the result that the assessment of the death
penalty has once again become unacceptably arbitrary and erratic.
See Branch v. Texas, decided with Furman v. Georgia, 408 U.S.
238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Acknowledging that in
Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929
(1976), the United States Supreme Court held that our capital
punishment scheme was not unconstitutional, arbitrary or erratic,
appellant argues that Jurek is no longer controlling because of
the amendments to Article 37.071.
FN3. Prior to September 1, 1991, Article
37.071(b)(1) required an affirmative answer to the
questionwhether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another
would result. See also Art. 37.0711. For offenses, like
appellant's, committed on or after September 1, 1991 this
special issue was deleted.
In Jurek the Supreme Court focused on two
aspects of our sentencing scheme. First the court focused on the
narrow statutory definition of capital murder found in Section
19.03 of the Texas Penal Code. Id. at 270-271, 96 S.Ct. at
2955-2956. Thereafter, Justice Stevens, writing for the Court,
focused on Article 37.071 asking whether it provided a vehicle
for consideration of mitigating evidence; focusing entirely on
the second special issue (future dangerousness), he found it
could provide a sufficient vehicle for the consideration of
mitigating evidence. Id. at 271-273, 96 S.Ct. at 2956-2957.
The Jurek court in no way suggested that the
question of deliberation was pivotal to its decision; to the
contrary, an honest reading of the opinion suggests that the
question of deliberation was irrelevant to the Court's concerns
and analysis under Furman.
In Jurek, the Supreme Court held: Thus, Texas
law essentially requires that one of five aggravating
circumstances be found before a defendant can be found guilty of
capital murder, and that in considering whether to impose a
death sentence the jury may be asked to consider whatever
evidence of mitigating circumstances the defense can bring
before it.
It would appear that, as in Georgia and
Florida, the Texas capital-sentencing procedure guides and
focuses the jury's objective consideration of the particularized
circumstances of the individual offense and the individual
offender before it can impose a sentence of death. 428 U.S. at
273-274, 96 S.Ct. at 2957. There is nothing in the amendments to
Article 37.071 which would change this holding. Indeed, the
addition of the new special issue regarding mitigating evidence
brings Article 37.071 into further compliance with the concerns
of the Eighth Amendment as expressed by the Supreme Court in
Jurek. Point of error five is overruled.
In points of error six and eight, appellant
respectively challenges the constitutionality of Article 37.071
under Article I, Section 13 of the Texas Constitution, which
states that cruel or unusual punishment shall not be inflicted,
and Article I, Section 3, guaranteeing equal protection of law.
Appellant raises the same arguments in point of error six that
he raised under point of error five, and in point eight
identical arguments as raised under point seven. Appellant adds
that even if he does not prevail under the federal constitution,
he prevails under the broader protections of the Texas
Constitution.
Appellant provides no arguments or
authorities supporting his position that the Texas Constitution
offers greater protections against cruel and unusual punishment
and broader understanding of equal protection than does the
United States Constitution. Appellant argues that we should hold
that the Texas Constitution offers greater protections merely
because we have the authority to do so. Appellant argues that we
have a responsibility to do so in the face of an increasingly
conservative United States Supreme Court.
That we have the authority to find that the
protections offered by the Texas Constitution are broader than
corresponding protections of the federal constitution, does not
prove that, in fact they are so. Before we exercise our
authority, appellant must present argument and authority
convincing us that his assertions of greater protection are in
fact correct. In the case at bar, appellant proffers no such
argument or authority. Without such argument or authority, not
only is his argument unconvincing, it is also inadequately
briefed. Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App.1992);
Robinson v. State, 851 S.W.2d 216, 222 n. 4 (Tex.Crim.App.1991);
Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex.Crim.App.1991);
McCambridge v. State, 712 S.W.2d 499, 501-502 n. 9 (Tex.Crim.App.1986);
Tex.R.App.Proc. 74 and 210. We decline to pursue appellant's
arguments for him. Appellant's sixth point of error is overruled.
In points of error seven and eight, appellant
argues that the amendments to Article 37.071, particularly the
elimination of the first special issue (deliberation), are
violative of the equal protection guarantees of the federal and
state constitutions, respectively. Appellant argues that the
equal protection of law entitles him to the same procedures as
all similarly situated defendants, i.e., all those being tried
for capital murder at the same time. Appellant argues that the
peculiar effective date of Article 37.071 has created a
situation in which two capital trials conducted on the same day
may follow different procedure depending on the date the offense
was committed. This situation is not violative of appellant's
right to equal protection.
The Equal Protection clause of the federal
constitution requires that “all persons similarly situated shall
be treated alike” under the law. Plyler v. Doe, 457 U.S. 202,
102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Thus, to initiate his
claim appellant must establish that he is not being treated the
same as others “similarly situated.” See Dobbert v. Florida, 432
U.S. 282, 302, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977). But,
appellant was treated in the same manner as all those who
committed a capital murder after September 1, 1991; that is, he
is treated the same as all those “similarly situated.” See also,
Dinkins v. State, 894 S.W.2d 330, 341 (Tex.Crim.App.1995).
Regarding his equal protection claim under
Article I, Sect. 3 of the Texas Constitution, appellant concedes
that to the extent we have addressed Article I, Section 3 we
have found no broader protections than those contained in the
Fourteenth Amendment. Rucker v. State, 170 Tex.Crim. 487, 342
S.W.2d 325 (1961). Appellant presents no compelling reason to
divert from this precedent. His seventh and eighth points of
error are overruled.
In his ninth point of error, appellant argues
that the trial court erred in instructing that the jury was not
to consider or discuss the parole ramifications of a life-sentence
and in failing to instruct the jury that a life-sentence carries
a mandatory minimum thirty-five years imprisonment. Appellant
cites no authority supporting his arguments other than general
allegations that his sentence violates the proscriptions against
cruel and unusual punishment in the federal and state
constitution.
Appellant ignores the strong body of
jurisprudence holding that parole is not a proper jury
consideration in capital murder deliberations. We have
repeatedly held that “in Texas, parole is not a matter for a
jury's consideration in a capital murder trial.” FN4 See e.g.,
Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995), cert. denied
516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). Recently, in
Smith we rejected arguments that the prohibition against the
consideration of parole violates constitutional prohibitions
against cruel and unusual punishments. Smith, 898 S.W.2d at 846.
Appellant presents no factual or legal
distinctions that remove his case from the authority of this
precedent. Appellant presents no reversible error; his ninth
point of error is overruled. FN4. Jones v. State, 843 S.W.2d
487, 495 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113
S.Ct. 1858, 123 L.Ed.2d 479 (1993); Ellason v. State, 815 S.W.2d
656, 665, n. 5 (Tex.Crim.App.1991); Stoker v. State, 788 S.W.2d
1, 16 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct.
371, 112 L.Ed.2d 333 (1990).
In point of error ten, appellant alleges that
the trial court committed reversible error in failing to charge
the jury with an “application paragraph.” We deduce that
appellant's challenge is to the punishment charge. Appellant
does not argue that an application paragraph was made necessary
by a particular issue raised in his case. He argues that an
application paragraph is always required in jury charges, and
that its exclusion is always reversible error. Appellant relies
on Williams v. State, 547 S.W.2d 18, 19 (1977).
Williams stands for the proposition that a
trial court must include an application paragraph in its jury
charge at the guilt-innocence phase of trial. But, appellant's
case involves a punishment-charge in a capital murder trial in
which the State sought the death penalty; this presents vastly
different factual and legal concerns from those addressed in
Williams.
Firstly, no statutory authority requires an
application paragraph in the punishment charge of a capital
murder trial. Article 36.14 governs the jury charge at the guilt-innocence
phase of a trial, but the punishment phase of a capital trial is
governed by Article 37.071. Article 37.071 is “so to speak, a
formbook presentation of that which must be submitted to the
jury” without “mention of objections to or requested
instructions for inclusion in the charge, nor any reference back
to other procedural rules.” Johnson v. State, 629 S.W.2d 731,
733 n. 16 (Tex.Crim.App.1981) (Judge Clinton dissenting).FN5
FN5. Contrast for example, Article 37.07,
which governs the punishment charge in non-capital trials;
Article 37.07 § 3(b) states that “the court shall give such
additional written instructions as may be necessary and the
order of procedure and the rules governing the conduct of the
trial shall be the same as are applicable on the issue of guilt
or innocence.” Article 37.071 has no comparable provision.
The absence of provisions for additions to
the instructions required by Article 37.071 or for objecting or
preserving error to the instructions has necessitated citation
by analogy to Article 36.14 in resolving some procedural
questions arising under Article 37.071. See e.g., Miniel v.
State, 831 S.W.2d 310, 318 (Tex.Crim.App.), cert. denied, 506
U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992) (preservation of
error requirements).
Secondly, noting that the purpose and the
structure, as prescribed in Article 37.071, of a punishment
charge in a capital trial are unique and distinct from a guilt-innocence
charge, we conclude that the rationale in Williams is applicable
to the present case. Judge Onion, writing for the court in
Williams, explained that to properly apply the law to the facts,
it is necessary for a neutral party, the court, to guide the
jury with an “application paragraph” which explained to the jury
what conduct they must find to establish the alleged offense
according to the legal definition of that offense. Williams, 547
S.W.2d at 20.
This rationale is not applicable to the
punishment phase of a capital murder trial. While a jury needs
guidance to recognize evidence relevant to the legally defined
elements of a particular offense, it can readily grasp the
relevance of evidence to the special issues.
Thus, we conclude that for a punishment
charge in a capital murder an application paragraph is neither
necessary nor authorized. Of course, we do not foreclose the
possibility that a situation may arise in which such
instructions may be necessary. What we hold today is simply that
appellant has not presented such a situation. Point of error ten
is overruled.
Appellant avers, in point of error eleven,
that the trial court reversibly erred in providing an incomplete
Geesa instruction in its punishment charge. 820 S.W.2d at 162.
Appellant alleges without explanation that the incomplete
instruction on the meaning of beyond a reasonable doubt violated
the due process and equal protection clauses of the Fourteenth
Amendment of the United States Constitution and the
corresponding provisions of the Texas Constitution.
According to the record, the trial court
instructed the jury on the first special issue as required by
Article 37.071. The trial court added that the State must prove
an affirmative answer beyond a reasonable doubt and explained
A “reasonable doubt” is a doubt based on
reason and common sense after a careful and impartial
consideration of all the evidence in the case. It is the kind of
doubt that would make a reasonable person hesitate to act in the
most important of his own affairs ... Proof beyond a reasonable
doubt, therefore, must be proof of such a convincing character
that you would be willing to rely and act upon it without
hesitation in the most important of your own affairs.
Assuming for argument, that Geesa is
applicable to the punishment charge of a capital trial, our own
review of the record reveals that the instruction given was in
substantial compliance with Geesa; it was appropriately amended
to fit the punishment phase of a capital murder trial. In the
instruction given, some of the paragraphs contained in the Geesa
instruction were deleted, but these paragraphs were designed for
the guilt-innocence charge and therefore inappropriate for a
punishment charge under Article 37.071. FN6 Appellant's eleventh
point of error is overruled.
FN6. Moreover, appellant concedes that this
particular complaint was not raised at trial, but argues that it
was egregious error. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).
[19] In point of error twelve appellant alleges that the trial
court erred in denying his motion for a new trial, “in that a
bad decision by the appellant had such severe consequences that,
in all fairness, trial counsel would not have acquiesced to the
appellant's wishes if the legal consequences had been understood.”
The gravamen of this argument is appellant's decision not to
allow his counsel to present any “mitigating” evidence during
his sentencing trial. His attorney testified as follows:
Mr. Morris and I have discussed presenting
witnesses on behalf of Mr. Sonnier, those witnesses being
various family members of Mr. Sonnier. We have advised Mr.
Sonnier of our desire to present those witnesses on his behalf
in his best interest, especially at this part of the trial,
punishment phase of trial. Mr. Sonnier has advised us that he
does not want us to put on any witnesses or put forth any
evidence or testimony in regards to the defense at this stage of
the trial.
Appellant does not allege any impediment to
the voluntariness of this decision. He merely alleges that in
retrospect, he realizes it was a mistake not to allow his
counsel to present mitigating evidence. Appellant does not argue
that actual mitigating evidence existed at the time of his trial;
he merely asserts that he would on retrial “muster whatever
Penry evidence might be available.”
Life is full of choices which in retrospect
are regrettable. The law, however, does not recognize this truth
as grounds for reversal of a criminal conviction. To the
contrary, the basic principle underlying our criminal justice
system is that each citizen is free to make choices, even if the
choice is clearly a mistake. See Hubbard v. State, 739 S.W.2d
341, 345 (Tex.Crim.App.1987) (upholding appellant's right to
self-representation, albeit questioning the wisdom of forgoing
counsel's expertise in prosecuting an appeal). Neither the trial
court nor appellant's attorney was free to override appellant's
choice, and we have no authority to review appellant's choice; a
defendant's knowing and free choices are owed absolute deference.
His twelfth point of error is overruled.
In point of error thirteen, appellant argues
that the trial court erred in overruling his objection to the
State's reference during its closing argument at punishment to
appellant's failure to produce witnesses to testify on
appellant's behalf. Appellant does not specify to which part of
the State's argument he objects, but we surmise that he objects
to the following remarks:
[The defense] said if there were information
about this defendant's criminal past you know I would have
brought it. And, you know, certainly I am the only one with any
burden of proof here, and they are in no way responsible to
bring any evidence, but the other side of that coin is if there
was a parade of character witnesses to say what a fine man this
is, you know you would have heard those, too.
Appellant's complaint is meritless. It is
within the bounds of permissible jury argument for the State to
comment on an appellant's failure to call competent and material
witnesses. Albiar v. State, 739 S.W.2d 360 (Tex.Crim.App.1987).
Appellant concedes that under Albiar, the State's argument was
proper, but he nevertheless, “recommends” that we overrule
Albiar. We decline to overrule precedent without a compelling
reason. Point of error thirteen is overruled.
The judgment of the trial court is affirmed.
CLINTON, J., concurs in the result. BAIRD, J., concurs with
note:
BAIRD, J., concurs. I concur in the
disposition of the fifth point of error for the reasons stated
in Green v. State, 912 S.W.2d 189 (Tex.Cr.App.1995) (Baird and
Overstreet, JJ, concurring). I concur in the disposition of
points of error seven and eight for reasons stated in Dinkins v.
State, 894 S.W.2d 330, 341 (Tex.Cr.App.1995). I concur in the
disposition of point of error nine for the reasons stated in
Smith v. State, 898 S.W.2d 838, 855 (Tex.Cr.App.1995) (Baird,
J., concurring). I concur in the disposition of point of error
eleven for the reasons stated in Almanza v. State, 686 S.W.2d
157 (Tex.Cr.App.1984). I join the remainder of the opinion.
