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Robert Lee WOODARD
Classification: Murderer
Characteristics:
Robbery
Number of victims: 2
Date of murders:
February 12,
2000
Date of birth: June
17,
1980
Victims profile: Thankachan Mathai (convenience store owner)
and his wife, Achamma
Method of murder:
Shooting
Location: Harris County, Texas, USA
Status: Sentenced to death on June 20, 2001
Name
TDCJ Number
Date of Birth
Woodard, Robert Lee
999388
06/17/1980
Date Received
Age
(when Received)
Education Level
06/20/2001
21
11
Date of Offense
Age
(at the
Offense)
County
02/12/2000
19
Harris
Race
Gender
Hair Color
black
male
black
Height
Weight
Eye Color
5 ft
10 in
202
brown
Native County
Native State
Prior Occupation
Cook
Illinois
laborer
Prior Prison
Record
None
Summary of
incident
On
02/12/2000, in Houston, Woodard attempted to rob a convenience
store.
When the owners of the store, a male and female from
India, were unable to open the cash register fast enough to suit
Woodard, he shot and killed them.
He took lottery scratch off
tickets and left the store.
Once outside, he took the vehicle
of a customer and fled the scene.
Co-defendants
None
Race and Gender of
Victim
Indian male and female
Robert Lee Woodard v.
State [No. 74,080]
Robert Lee Woodard was convicted by a
Harris County jury of capital murder and sentenced to death.
The State's evidence showed that in 1999
Woodard robbed a Houston convenience store and in the course
of that robbery shot and killed the owner, Thankachan Mathai
and his wife, Achamma Mathia who was working at the store.
The defense contended that Woodard's brother committed the
crimes and the witnesses misidentified Woodward as the
perpetrator.
Woodard raises eleven points of error. He
argues that the trial court erred in failing to hold that he
was improper arrested and this tainted State's evidence and
that it erred in admitting eyewitness identification
testimony over Woodard's claim that this testimony was
tainted by suggestive photo showings and a lineup.
He also contends that the trial court
erred in failing to instruct the jury that a specific State
witness was an accomplice whose testimony had to be
corroborated. In addition, he complains of admission of
certain victim impact evidence and he challenges the Texas
death penalty scheme.
Womack, J., delivered
the opinion for an unanimous Court.
The appellant was
found guilty of the capital murders of Thankachen Mathai and
Achamma Mathai, who were husband and wife. He was sentenced
to death on March 8, 2001. On appeal, he presents six points
of error about the trial on the issue of guilt, and five
more points about the punishment stage.
The Mathais owned and
operated a convenience store in Houston. On the night of
February 12, 2000, Thankachen was working at the store, and
Achamma had brought him dinner. Between 10 and 11 p.m., Cory
Calloway bought gasoline from the store's pumps for his 1989
Lincoln. Leaving the engine running at the gas pumps,
Calloway went to a pay telephone at the side of the building.
While Calloway talked
on the phone, Garvina Sadiki came in the store to buy
merchandise. As Sadiki paid for her items, a man dressed in
a hooded jacket entered the store with a gun in his hand.
The man fired a shot and said, "This is a robbery. Don't
anybody move."
The robber ran behind
the counter where Thankachen and Achamma stood, and ordered
Thankachen to open the register. He ordered Sadiki not to
look at him, and she obeyed. When Thankachen could not get
the register open, the robber shot him. The man then ordered
Achamma to open the register and threatened to shoot
Thankachen again if she did not. Achamma cried and screamed,
begging the man not to hurt them. As she fumbled with the
register, the man pointed the gun toward Thankachen and
fired another shot.
Hearing police sirens,
the robber cursed and ran from behind the counter to the
front door only to discover that it had been locked. The man
screamed for Achamma to open the door. Sadiki heard the lock
open, and she saw the man push open the door. Then the
robber returned to the counter where Achamma and Sadiki were
standing. He backed up to Sadiki, keeping his face hidden,
and demanded her keys. Sadiki handed the man her keys. The
man said to Achamma, "Bitch," and he shot her in the head.
He then ran out the front door.
Outside the store,
Calloway was still talking on the telephone. He heard the
gunshots and then "a loud bust through the door." He looked
up and saw a person wearing a hooded sweater run toward his
Lincoln. Calloway ran toward the man, who pointed a gun at
him. Calloway retreated to safety, and the man drove away in
Calloway's Lincoln. Calloway went in the store and called
for help.
Police officers
arrived quickly. Achamma was already dead. Thankachen died
shortly after being taken to a hospital.
I. Guilt-stage
Issues
The appellant's
complaints include (A) two points about illegal search and
seizure, (B) two points about improper identification
procedures before trial, (C) a point about improper
identification procedures during trial, and (D) a point
about the court's charge.
A.
Search and Seizure
1.
Identifying the Appellant's Complaints
We must specifically
identify the appellant's complaints about search and
seizure, because the facts and the law will require
different treatments of the several complaints. We find
that, within his first two points, the appellant presents
nine complaints.
The first point of error in the appellant's brief is that
the "trial court erred in denying the appellant's motion to
suppress the appellant's arrest in violation of" Article I,
Section 3 of the Texas Constitution and Articles 14.04 and
38.23 of the Code of Criminal Procedure.
(1) The
second point, which complains of the same error, is
different only in that it invokes the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution.
(2)
The motion to which the points refer was the appellant's
"Motion to Suppress the Arrest and Search of Defendant."
(3)
The title of his motion cannot be taken literally. A court
could not have suppressed the arrest and the search of the
appellant, which were performed months before the motion was
filed. It could have "suppressed," by ruling inadmissible,
evidence that was obtained as a result of an illegal arrest
or search. The texts of the motion and the brief, and the
record of the proceedings before and during the trial, make
it clear enough that these points complain of the admission
of such evidence.
The appellant's brief specifies three kinds of evidence: "As
a result of the appellant's arrest, the State was able to
introduce at trial [1] evidence that was seized from
apartment 414 (R. XXV, 112-113; State's Exhibit 111) as well
as [2] the line-up (State's Exhibit 4) and [3] Calloway's
'strong tentative' identification."
(4)
Therefore, we can tell
that the appellant's first two points comprise nine
complaints about the admission of evidence. Point one has
six complaints, three of which are that the admission of
each kind of evidence was contrary to the state
constitution, and three of which are that the admission of
each kind of evidence was contrary to state statutes. Point
two presents three complaints, which are that the admission
of the three kinds of evidence violated the federal
constitution.
2.
Inadequate Briefing
The appellant's brief presents and argues points one and two
together. (5)
The argument is that the arrest of the appellant without
warrant violated Article 14.04 of the Code of Criminal
Procedure. The argument has no discussion or citation of
either the state constitution or the federal constitution.
We hold that the three state-constitutional complaints in
point one and the three federal complaints in point two are
inadequately briefed.
Appellate complaints that purport to be based on both state
law and federal constitutional law are not rare. We have
held more than once that the mere invocation of a provision
of the state constitution is not enough; the appealing party
must present an argument, supported by authority, that
explains why each constitution has been violated.
(6)
An appealing party is obliged to present argument and
authority for complaints that the federal constitution was
violated as well as for complaints that are based on state
law. (7)
The appellant has
presented neither argument nor authority to support the
nominal complaints in point one that the denial of his
motion violated the state constitution or the complaint in
point two that the ruling violated the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution.
Therefore, we hold that the six constitutional complaints in
points one and two are inadequate for review. Point of error
two is overruled.
3.
Facts relevant to Point One
We shall turn to the
portion of point one that complains that, under state
statutes, the trial court erred by admitting three types of
evidence: (1) "evidence that was seized from apartment 414,"
(2) "the line-up (State's Exhibit 4)," and (3) "Calloway's
'strong tentative' identification."
About a day and a half
after the Mathais were murdered and Calloway's automobile
was stolen, someone reported to police that the automobile
was parked at an apartment complex several miles from the
crime scene. Police seized the vehicle.
Five days after the
crime, an individual gave investigators information that
they used to get a warrant to search an apartment near the
place where the stolen automobile had been found. In the
apartment, they found property that had been taken from
Calloway's automobile.
At the apartment were three people (one
of whom was the appellant's brother) who said the appellant
told them he had shot and killed some people at a store and
stolen a customer's car. They said that the appellant had
brought stolen property with him, and that he had asked one
of the occupants to hide his gun for a few days. The
appellant's brother told investigators where the appellant
lived.
While the
investigators were preparing an affidavit for a warrant to
arrest the appellant, other officers kept a watch on the
apartment building where the appellant lived. After
midnight, the officers saw the appellant walking near the
apartment building, and they seized him. They had no
warrant, and the investigators abandoned their efforts to
get a warrant when they heard that the appellant had been
arrested.
The appellant gave the officers written consent to search
the apartment, which was the "apartment 414" to which his
brief refers. The officers went to the apartment, where
Andrea Nero opened the door. She said it was her apartment.
Officers testified that she and the appellant lived there
together. She consented to the search, and she added her
signature to the written consent that the appellant had
signed.
In the apartment, the officers found a "gym bag" or
"canvas bag" that contained a box of ammunition, which was
admitted in evidence as State's Exhibit 111.
(8) Also in the
bag were clothing, a camera and film, two telephones, some
jewelry, and "some I.D. cards attached to a neck strap and
had Reginald Willis and looked like an I.D. number of some
type on each card." (9)
Later that day,
investigators put the appellant in a lineup for viewing by
Garvina Sadiki and Cory Calloway, the customers who were at
the store during the robberies and murders. State's Exhibit
4 was a copy of a videotape recording of the lineup, which
was shown to the jury.
Calloway testified on
direct examination that he recognized the appellant in the
lineup, and that he told a police investigator that he
"strongly agreed" that the appellant was the person who
stole his automobile. He requested to see the appellant in a
hood, because the person who stole his car was wearing a
hooded sweatshirt, but the police could not find one to put
on the people in the lineup.
On cross-examination, Calloway
testified that he told the police officer, "I was strongly
tentative. � I said I would be 100 per cent sure if I see
the hood," that "I strongly believed that it was" the
appellant, and that "I would be more sure if I had the hood.
� But that's what I meant by saying positive, is being
strongly tentative about it. The only reason I had doubt was
the hood."
A police investigator
who conducted the lineup gave similar testimony about
Calloway's identification of the appellant at the lineup.
4. Mootness of Complaint About Admission of Evidence Seized
from Apartment 414
The appellant
complains that the trial court erred in admitting the
evidence seized from Apartment 414. This evidence was the
box of ammunition that officers found in the apartment. The
appellant argues that it was illegally obtained, because it
was found during a search to which he consented after being
illegally arrested. The State argues that the illegal arrest
did not taint the appellant's consent.
The issue of the
validity of the appellant's consent is moot. Andrea Nero's
consent to search her apartment was sufficient authority for
the officers' search. Insofar as point one complains of the
admission of the box of ammunition on state-law grounds, it
has no merit.
5.
Failure to Object to Admission of Calloway's Identification
The appellant also
complains that the trial court erred in admitting Calloway's
identification of him. However, the appellant made no
objection at trial to Calloway's testimony about his
identification of the appellant in the lineup or to the
police investigator's testimony about Calloway's
identification of the appellant in the lineup. Rule of
Evidence 103(a) says, "Error may not be predicated upon a
ruling which admits � evidence unless � a timely objection
or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent
from the context." Therefore, error may not be predicated on
the admission of that testimony.
6.
Admission of the Line-Up (State's Exhibit 4)
The only one of the
appellant's nine complaints in points one and two that was
preserved in the trial court and properly presented for
appellate review in this Court is that the videotape
recording of the lineup was admitted in violation of state
statutes.
The officers seized him illegally, the appellant says,
because they did not satisfy two requirements of Article
14.04 of the Code of Criminal Procedure for an arrest
without warrant: that the persons who gave information to
the police be credible and that the suspect be about to
escape. (10)
By this illegal arrest, he says, the State obtained the
videotape recording of the lineup.
The State argues that the arrest was authorized by Article
14.04: "Not only did officers have probable cause to arrest
appellant but appellant was about to escape so that there
was no time to procure a warrant."
(11)
The State sets out the evidence of probable cause, and
continues:
Officers then began preparing an arrest and search warrant.
Meanwhile, other officers went to conduct surveillance at
appellant's apartment. Between 1:15 a.m. and 1:30 a.m.,
officers observed a person fitting appellant's description
leaving the vicinity of Apartment 414 at 11700 Bissonnet,
and proceed down the sidewalk at a steady pace. Sgt. Welch
approached appellant, identified himself as a police officer,
and asked appellant his name. Appellant stated his name was
Robert Woodard and produced his driver's license. Sgt. Welch
placed appellant under srrest and put him in his police car.
Sgt. Welch advised appellant he was under arrest for capital
murder and gave him his Miranda warning.
(12)
These facts do not show, and the State does not attempt to
explain how a court could find, that the appellant was about
to escape. The State's brief continues by assuming that the
arrest was illegal, (13)
and we hold that it was illegal in that it was not
authorized by Article 14.04 of the Code of Criminal
Procedure.
Evidence obtained in violation of the laws of the state may
not be admitted in evidence against the accused on the trial
of a criminal case.
(14)
There was no evidence that the illegal arrest of the
appellant was ever cured or that his detention at the time
of the lineup was made legal by authority of a magistrate.
The police investigators testified that they abandoned their
efforts to obtain a warrant when they heard that the
appellant was arrested without warrant. There was no
evidence that the appellant was taken before a magistrate,
(15) or that his
detention at the time of the lineup was under the authority
of a magistrate rather than whatever authority an officer
might have to arrest without a warrant.
(16)
We hold that the trial
court erred in admitting State's Exhibit 4, the videotape
recording of the lineup that followed the illegal arrest of
the appellant.
7.
Harm
We must consider the harm of the error in admitting the
videotape recording of the lineup. An appellate court judges
the harm of admitting evidence that was obtained in
violation of a statute like Article 14.04 of the Code of
Criminal Procedure by the standard of Rule of Appellate
Procedure 44.2(b): "Any other [that is, other than
constitutional] error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded."
Under that rule, an appellate court may not reverse for non-constitutional
error if the court, after examining the record as a whole,
has fair assurance that the error did not have a substantial
and injurious effect or influence in determining the jury's
verdict. (17)
Here, the erroneously
admitted evidence was a videotape recording of a lineup. The
other evidence that was admitted without a finding of error
in this appeal included oral testimony about the lineup,
testimony about the identification of the appellant at the
lineup, and an in-court identification of the appellant by
one of the witnesses who viewed the lineup. Considering this
evidence, as well as the other properly admitted evidence of
guilt and the other aspects of the trial, we hold that the
erroneous admission of State's Exhibit 4 was harmless. Point
of error one is overruled.
B.
Identification
1.
Before Trial
In his third point of error, the appellant complains that "[t]he
trial court erred in denying the appellant's motion to
suppress identification by Cory Calloway in violation of the
Fifth and Fourteenth Amendments of the United States
Constitution." (18)
The fourth point, which complains of the same error, is
different only in that it invokes Article 38.23 of the Code
of Criminal Procedure and Article I, Sections 10 and 19 of
the Texas Constitution. (19)
In both these points, the appellant complains that "the
combination of seeing the appellant in a live lineup that
contained dissimilar individuals, viewing a photospread of
the appellant sometime during the investigation (State's
Exhibit 2), then seeing that individual in court while
wearing a hooded garment--without any other individuals to
compare him to--created an [sic] with respect to
Calloway an impermissibly suggestive identification
procedure that violated the appellant's rights."
(20)
The appellant's brief
presents points of error three and four together. He fails
to distinguish between federal protections and those
afforded by state law. Therefore, we will discuss the points
together; we need not determine whether the state
constitutional protections are more expansive than that
afforded by the federal constitution. Heitman v. State,
815 S.W.2d 681 (Tex. Cr. App. 1991).
In reviewing whether
an identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of
misidentification, we look to the totality of circumstances
surrounding the identification to determine if the procedure
was unnecessarily suggestive. Webb v. State, 760
S.W.2d 263, 269 (Tex. Cr. App. 1988). An in-court
identification that has been tainted by an impermissibly
suggestive pretrial identification is inadmissible.
Loserth v. State, 963 S.W.2d 770, 771-72 (Tex. Cr. App.
1998).
A two-step analysis is applied in determining whether
an in-court identification has been tainted: (1) whether the
out-of court identification procedure was impermissibly
suggestive, and, if suggestive, (2) whether that suggestive
procedure gave rise to a substantial likelihood of
irreparable misidentification. Simmons v. United States,
390 U.S. 377, 384 (1968). The appellant bears the burden of
establishing that the pretrial identification procedure was
impermissibly suggestive and that the in-court
identification is unreliable. Delk v. State, 855
S.W.2d 700, 706 (Tex. Cr. App. 1993).
The appellant contends
that the identification was impermissibly suggestive based
on the combination of three factors: (1) seeing the
appellant in a live lineup with dissimilar individuals, (2)
viewing a photospread of the appellant during the
investigation, and (3) then seeing that individual in court
wearing a hooded garment without other individuals for
comparison.
Though it is good practice that the individuals in a lineup
be as similar as possible, a pretrial identification
procedure is not impermissibly suggestive simply because the
lineup members are not identical in appearance. Buxton
v. State, 699 S.W.2d 212, 216 (Tex. Cr. App. 1985). The
appellant argues that the lineup individuals had dissimilar
facial hair and hair lengths. We hold, however, that these
differences did not render the lineup impermissibly
suggestive. (21)
The appellant also complains that "the repeated showing of
the appellant's picture was suggestive."
(22)
On February
18, 2000, Calloway viewed the lineup in which he made a
strong tentative identification of the appellant, qualified
only by the fact that he wished he could see the individuals
in the lineup wearing hoods on their heads, as did the
suspect on the night of the robberies and murders.
Approximately one month later, Calloway viewed a photospread
in which all the individuals appeared to be wearing hoods.
Calloway positively identified the appellant. Because
Calloway had previously identified the appellant, viewing
another display was not impermissibly suggestive.
(23)
Finally, the appellant claims the identification was unduly
suggestive because Calloway saw the appellant wearing a
hooded garment at trial and "there was no one else donning a
similar garment."
(24)
The appellant complains of Calloway's identification of the
appellant during trial; however, Calloway had already
identified the appellant, both in a pretrial lineup and
during trial without a hood. Therefore, Calloway's in-court
identification of the appellant while wearing a hood could
not have affected Calloway's previous identification of the
appellant. Furthermore, the appellant's points of error
relate to his motion to suppress, a pretrial motion. The
trial court could not have erred in denying the motion based
on a fact that had not yet occurred -- that the appellant
would put on a hooded garment during trial.
The appellant's points
of error three and four are overruled.
2.
During Trial
In his fifth point, the appellant complains that "the trial
court abused its discretion in allowing the State to conduct
an in-court demonstration that required the appellant to put
on a hooded sweatshirt during the testimony of Cory Calloway."
(25) In
particular, the appellant argues that the trial court erred
in "forcing the appellant to put on the hooded garment in
the absence of others similar to the appellant being
required to don the same sort of garment."
(26) Absent a
foundation for the demonstration, according to the appellant,
the trial court should have excluded the evidence.
It has been held
proper during a trial to require the defendant to stand, put
on a hat, remove his glasses or make a footprint--all for
the purpose of identification. See Taylor v. State,
464 S.W.2d 410 (Tex. Cr. App. 1971). Point of error five is
overruled. C. Charge
The sixth point of error in the appellant's brief is that
"the trial court erred in failing to submit a jury
instruction that Reginald Willis was an accomplice witness
as a matter of law." (27)
The appellant claims that "the trial court merely instructed
the jury that the question of whether Reginald was an
accomplice [was] a fact question[,]" and that it should have
"submitted an instruction that he was an accomplice as a
matter of law." (28)
An accomplice witness
is an individual who participated with the defendant before,
during, or after the commission of the crime for which the
defendant is on trial. McFarland v. State, 928
S.W.2d 482, 514, cert. denied, 519 U.S. 1119
(1997).
The participation must
involve some affirmative act committed by the witness to
promote the commission of that offense. Id.
In order to be an
accomplice as a matter of law, the witness must be
susceptible to prosecution for the offense with which the
accused is charged. Id. Only when there exists no
doubt, or when the evidence clearly shows, that a witness is
an accomplice witness as a matter of law is the trial judge
under a duty to so instruct the jury. Blake v. State,
971 S.W.2d 451, 455 (Tex. Cr. App. 1998). When there is a
conflict in the evidence, or a doubt or a question as to
whether a witness is an accomplice witness, it is proper to
submit the question as a fact issue to the jury. Harris
v. State, 738 S.W.2d 207, 216 (Tex. Cr. App. 1986).
Here, Willis testified
that the appellant told him that he had committed the
robbery, stolen Lotto tickets, shot someone, robbed a man of
his car, and then went to Willis's house with the stolen
goods. Willis saw the appellant with a gun and heard the
appellant say that he wanted to get rid of it.
A witness is
not an accomplice witness merely because he may have known
of an offense and did not disclose it, or even if he
concealed it. McFarland, 928 S.W.2d at 514. Willis
took and sold some of the stolen items and cashed the stolen
Lotto tickets; various items stolen from the car were
recovered from Willis's apartment. However, complicity with
an accused in the commission of one offense does not make
that witness an accomplice in a different offense. Id.
Although the testimony
implicated Willis as possibly having some role after the
robbery and murder, the evidence is insufficient to have
placed the judge under a duty to instruct the jury that
Willis was an accomplice to the murder as a matter of law.
Point of error six is overruled.
II.
Punishment-stage Issues
The appellant's
complaints include (A) two points about victim-impact
evidence, and (B) three points about the mitigation special
issue.
A.
Victim-impact Evidence
The seventh and eighth points of
error in the appellant's brief complain that "the trial
court abused its discretion in allowing victim-impact
testimony from individuals not named as complainants in the
indictment," specifically, the convenience-store customers
Garvina Sadiki and Cory Calloway. The points differ only in
that one cites the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution, and the other invokes
Article I, Sections 3, 10, and 19 of the Texas Constitution.
The brief argues the points jointly.
When the State called
the first of these witnesses, the appellant asked the trial
court to rule on three motions that he had filed two months
previously. He said that the motions had to do not only with
the testimony of the two customers, but also with that of
the victims' daughter. On appeal, the daughter's testimony
is not included in these points. The court denied the
motions. The customers testified briefly about the effect of
the crime on their lives. Their combined testimony occupies
only four pages of the reporter's record.
It is a prerequisite to presenting a complaint on appeal
that the record show that the complaint was made to the
trial court. Tex. R. App. P. 33.1(a)(1). The appellant has
identified, in his brief, the three motions by which he
presented complaints to the trial court.
(29) They failed
to preserve his points of error for our review.
The first of the three
motions asked the court to hold Article 37.071 of the Code
of Criminal Procedure unconstitutional because it allowed
the introduction and use of victim-impact evidence regarding
the deceased victims and the impact the crime had on their
family.
The second motion was a "motion in limine" that
asked the court to instruct the State and its witnesses not
to refer to the "personal characteristics of the deceased or
to the emotional impact of the death of the deceased on
friends and family." These motions did not present the
complaint that is now raised on appeal in points seven and
eight, which has to do with evidence of the impact of the
crime on persons other than the deceased victims' friends
and family.
The third motion "requests
that the State be required to detail, in writing, exactly
which witness will testify and the substance of the
testimony regarding victim impact." It also "requests that
the Court conduct a pretrial hearing to evaluate each
witness's testimony and demeanor." Neither of these requests
amounts to an objection to the customers' testimony. They
request only a written summary of evidence and a hearing.
The record also shows
that, after the customers testified and before the victims'
daughter was called to the stand, the appellant's counsel
agreed that he was satisfied with the oral discussions he
had with the prosecutor "without the need to insist on a
written synopsis." When the court asked if he needed to take
up anything about the content of the daughter's testimony, "since
you've asked for a hearing," counsel said, "No, judge."
Because no objection
was voiced to the customers' testimony and no objections
appeared in the motions the appellant asked the court to
rule on prior to their testimony, the appellant did not
provide the prerequisite to presenting his complaint. Points
of error seven and eight are overruled.
B.
Mitigation Special Issue
In points of error nine, ten, and eleven, the appellant
complains about the mitigation special issue at punishment.
The ninth point of error in the appellant's brief is that "especially
after the Mosley decision declaring victim evidence
admissible to 'rebut' mitigation, and also in light of the
Supreme Court's decision in Apprendi v. New Jersey,
the mitigation special issue at punishment is infirm as a
matter of federal Eighth Amendment constitutional law
because it omits a burden of proof."
(30)
The tenth
point of error is different only in that the appellant
argues the mitigation issue is infirm because "it makes
impossible any meaningful appellate review of the jury's
determination." (31)
In point eleven, the appellant argues that "Art[icle]
44.251. . . requiring appellate review of sufficiency of all
capital punishment special issues, when interpreted in
conjunction with Art[icle] 37.071, Sec[tion] 2(e). . . ,
placing no burden of proof in the mitigation special issue,
is facially unconstitutional, violating the Eight Amendment
to the United States Constitution."
(32)
We have previously
rejected identical claims and decline to revisit these
issues. See Blue v. Smith, 125 S.W.3d 491, 500-01
(Tex. Cr. App. 2003); Jackson v. State, 33 S.W.3d
828, 840-41 (Tex. Cr. App. 2000); Tong v. State, 25
S.W.3d 707, 715 (Tex. Cr. App. 2000). Points of error nine,
ten, and eleven are overruled.
6. See, e.g., Ex parte Hernandez,
953 S.W.2d 275, 286 (Tex. Cr. App. 1997) (court would not
consider appellant's "bare assertions, unsupported by
argument, analysis, or authority," that if a ruling did not
violate the federal constitution, it did violate the state
constitution); Ex parte Granger, 850 S.W.2d 513,
515 n.6 (Tex. Cr. App. 1993) (appellant did not properly
present state-law claim when he offered no authority or
argument specific to the state constitution).
7. Rhoades v. State, 934
S.W.2d 113 (Tex. Cr. App. 1996) (plurality opinion) (simple
declaration that ruling violated federal constitution,
without argument or authority, was not sufficient).
9. See id., at 136-39. An
officer testified, "Correct," in answer to the question, "Two
Aramark employee I.D.'s for Reginald Willis and a temporary
T.A.B.C. Commission I..D., right?" Id., at 144.
10. Brief, at 33-37 (citing Tex. Code
Crim. Proc. art. 14.04: "Where it is shown by satisfactory
proof to a peace officer, upon the representation of a
credible person, that a felony has been committed, and that
the offender is about to escape, so that there is no time to
procure a warrant, such peace officer may, without warrant,
pursue and arrest the accused").
13. "Even assuming, while not
conceding, appellant's arrest were unlawful, appellant has
neither alleged nor demonstrated that appellant's illegal
arrest tainted appellant's written consent to search."
Ibid.
14. Tex. Code Crim. Proc. art.
38.23(a) ("No evidence obtained by an officer or other
person in violation of any provisions of the Constitution or
laws of the State of Texas, or of the Constitution or laws
of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal
case").
15. See Tex. Code Crim. Proc.
art. 15.17(a) ("In each case enumerated in this Code, the
person making the arrest shall without unnecessary delay
take the person arrested or have him taken before some
magistrate of the county where the accused was arrested�").
16. Cf. Johnson v. Louisiana,
406 U.S. 356, 396 (1972) (constitutional validity of
defendant's arrest was beside the point when defendant was
brought before a committing magistrate before lineup,
continued detention was under authority of this commitment,
and lineup was conducted not by exploitation of the
challenged arrest but by means sufficiently distinguishable
to be purged of the primary taint).
17. Garcia v. State, 126
S.W.3d 921, 927 (Tex. Cr. App. 2004); Motilla v. State,78
S.W.3d 352, 355-58 (Tex. Cr. App. 2002); Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Cr. App.1998). SeeKing v. State, 953 S.W.2d 266, 271, 273 (Tex. Cr.
App.1997).
21. Cf. Barley v. State, 906
S.W.2d 27, 33 (Tex. Cr. App. 1995) (discrepancy in heights
of the five participants of several inches did not render
lineup impermissibly suggestive); Buxton, 699
S.W.2d at 216 (discrepancy in heights, weight, and skin
color of participants did not render lineup impermissibly
suggestive).
23. Compare with Cantu v. State,
738 S.W.2d 249, 251-52 (Tex. Cr. App. 1987) (showing of
several photospreads on different occasions, each with
picture of the appellant, is suggestive when the witness had
not previously identified the appellant) (emphasis
added). Here, Calloway had previously identified the
appellant in the first lineup.
