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In the Court
of Criminal Appeals of Texas
No. 73,204
Arthur Lee Burton, Appellant
V.
The State of Texas
On Direct
Appeal from Harris County
Johnson, J., delivered the
opinion of the Court, in which Meyers, Price, Keasler, Hervey,
Holcomb, and Cochran, JJ., joined. Keller, P.J.,
and Womack, J., concurred.
O P I N I O N
In June 1998, a jury convicted appellant of capital murder. Tex.
Penal Code ? 19.03(a). Pursuant to the jury's answers to the
special issues set forth in Texas Code of Criminal Procedure
Article 37.071, ?? 2(b) and 2(e), the trial judge sentenced
appellant to death. Art. 37.071, ? 2(g).
(1) On direct
appeal to this Court, we affirmed the conviction, but vacated the
sentence and remanded the cause to the trial court for a retrial
on punishment only. Burton v. State, No. 73,204 (Tex.
Crim. App. Mar. 7, 2001)(not designated for publication).
(2) On retrial,
in accord with the jury's answers to the special issues, the trial
judge sentenced appellant to death. Art. 37.071, ?? 2(b), 2(e),
and 2(g). Direct appeal to this Court is automatic. Art. 37.071, ?
2(h). Appellant raises five points of error, including a challenge
to the sufficiency of the evidence to support the jury's finding
that he would be a continuing threat to society. Art. 37.071, ?
2(b). We affirm.
STATEMENT OF FACTS
Shortly
after 7:00 p.m. on July 29, 1997, Nancy Adleman left home to go on
a short jog along the bayou near their house. Around 7:20 p.m.,
Sharon Lalen was watching her children play by some heavy
equipment near the bayou. When she turned around, she was startled
by a dirty and angry-looking man on a bicycle standing very close
to her. Lalen said, "Hello," but the man just gave her a mean look.
Feeling threatened by the encounter, Lalen called her children and
went home. As she was calling her children, Lalen saw Adleman
jogging along the bayou. Lalen later identified the man on the
bicycle as appellant.
The police
discovered Adleman's body the next morning in a hole about three
to four feet deep, located in the heavily wooded area off the
jogging trail along the bayou. Her shorts and panties had been
removed and discarded some distance away from the body, leading
the police to believe that she had been sexually assaulted.
Adleman had been strangled with her own shoelace, and her body
looked as if she had been badly beaten.
When
initially approached by Deputy Sheriff Benjamin Beall, appellant
denied that he ever rode his bicycle along the bayou, and he
denied killing Adleman. Beall confronted appellant with
inconsistencies in the evidence he had collected, and appellant
eventually confessed to the crime. In his written statement,
appellant admitted attacking a jogger, dragging her into the woods,
and choking her until she was unconscious. He then removed her
shorts and underwear and attempted to have sex with her. When she
regained consciousness and began screaming, appellant again choked
her into unconsciousness and dragged her into a hole. Appellant
began to leave, but when he saw another person walking nearby, he
returned and strangled the jogger with her own shoelace.
In addition
to the facts of the crime, the state presented evidence that, in
1988, when appellant was eighteen, he had participated in thirty-nine
burglaries of vehicles and outbuildings in a single month.
Appellant and his co-defendants had stolen guns, radios, fishing
equipment, calculators, and other items. At times, the
perpetrators would not take anything; they would just go through
any papers in the car and then destroy the inside of the vehicle.
Finally, appellant's brother testified that he knew that appellant
used marijuana and sold cocaine when appellant lived in Arkansas.
SUFFICIENCY OF EVIDENCE OF FUTURE
DANGEROUSNESS
In his third
point of error, appellant complains that the evidence presented at
trial was legally insufficient to support the jury's finding that
he would be a future danger. See Art. 37.071 ? 2(b)(1).
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 appellant would probably
commit criminal acts of violence that would constitute a
continuing threat to society. Jackson v. Virginia, 443
U.S. 307 (1979); Allridge v. State, 850 S.W.2d 471, 487 (Tex.
Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). A
jury can rationally infer future dangerousness from the
circumstances of the offense and the surrounding events alone.
Bell v. State, 938 S.W.2d 35, 41-42 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 827 (1997); Sonnier v. State,
913 S.W.2d 511, 516-17 (Tex. Crim. App. 1995).
At trial,
the jurors heard testimony that appellant first appeared behind
Lalen, leaving only when she turned and talked to him face to face.
Lalen was so alarmed by the encounter that she called her husband
at work and asked him to come home. Farther down the trail,
appellant rode up behind another lone female, grabbed her from
behind, dragged her into the woods, strangled her into
unconsciousness, then tried to sexually assault her. Eventually,
he strangled her.
When the
police questioned him about the crime, he at first denied any
knowledge or responsibility. He confessed only when the police
confronted him with several inconsistencies in his story. Although
appellant's criminal history consisted only of numerous burglaries
committed years earlier, a rational jury could have inferred from
the apparent randomness and unpredictability of the instant crime
that there was indeed a probability that appellant would commit
future criminal acts of violence that would constitute a
continuing threat to society. Under these facts, we hold the
evidence legally sufficient to support the jury's affirmative
answer to the future-dangerousness issue. Jackson, 443
U.S. 307; Martinez v. State, 924 S.W.2d 693, 696-97 (Tex.
Crim. App. 1996). Point of error three is overruled.
ADMISSION OF EVIDENCE
In his first
and second points of error, appellant claims that the trial court
violated his rights under the Fifth and Sixth Amendments to the
United States Constitution when it admitted statements he made to
a prison sociologist during a classification interview. Although
appellant does not specifically set out the statements about which
he complains, his argument highlights two statements that he made
referring to extraneous offenses and the answer he gave regarding
why he committed the instant offense.
During the second day of trial, the court held a hearing outside
the presence of the jury to consider the admissibility of certain
records provided by the Texas Department of Criminal Justice -
Correctional Institutions Division (TDCJ-CID) and the accompanying
testimony from prison sociologist J. P. Guyton. The records
reflected appellant's rationale for the instant offense; it was "just
something I couldn't help[.]" They also contained appellant's
admission that he had been using marijuana since he was sixteen
years old and had been selling cocaine since age seventeen.
Defense counsel objected to the records on the grounds that "this
extraneous offense is going to come in through interrogation of
our client without warnings or benefit of counsel and we believe
that it should not be admitted on that basis."
Guyton then
took the stand and told the court that he worked in the sociology
department at TDCJ-CID. He explained that his job was to interview
each incoming inmate in order to compile a social and criminal
history for use in classification. When the "reception and
diagnostic committee" classified an inmate, they determined which
unit he should be assigned to and which custody level he should be
assigned on that unit in order to best fit the inmate's security,
educational, and medical needs. Information about drug and alcohol
use was routinely elicited so that the drug and alcohol counselors
on the units could determine if a particular inmate needed
treatment. This information was also used by the Board of Pardons
and Paroles to assess whether it should require any counseling
before the inmate's release. Finally, the inmate was asked why he
committed the offense for which he was sentenced. The same
questions were asked of every inmate, and the information obtained
was not used to file charges on the inmate. At the end of the
testimony, defense counsel stated:
Judge, if we
have just a moment, I just want to make sure I made all my
objections clear on Mr. Guyton's testimony as to the extraneous
offense. We argue that it's not an offense which they can prove,
they can't make the test, as required by case law, as the Court is
well aware, to be able to offer that admission. In addition, it's
hearsay. And for those reasons we object.
Appellant did not reiterate his earlier complaint that the
information about the extraneous offenses was gleaned through a
custodial interview without the benefit of Miranda
warnings or counsel. Nonetheless, we hold that his earlier
complaint preserved his Fifth and Sixth Amendment complaints for
review on appeal, but only with regard to the admissibility of the
two extraneous offenses mentioned during the interview. Any
complaint appellant has about other information revealed during
the interview has not been preserved for appeal because appellant
confined his objections to extraneous offenses.
(3) Tex. R. App.
P. 33.1.
In his first
two points of error, appellant claims a violation of his Fifth and
Sixth Amendment rights in the admission of statements that he had
made to Guyton during the prison interview. As noted above,
appellant preserved his Fifth and Sixth Amendment complaints for
review on appeal only with regard to the admissibility of the two
extraneous offenses, using marijuana and selling cocaine,
mentioned during the interview.
During re-trial, appellant's brother testified without objection
that he knew about appellant's marijuana use and cocaine sales. It
is well settled that when evidence similar to that which was
objected to is introduced without objection, the defendant is not
in position to complain on appeal. Stoker v. State, 788
S.W.2d 1, 12 (Tex. Crim. App. 1989), cert. denied, 498
U.S. 951 (1990). We have more recently stated that "when a court
has overruled an objection to evidence, the ruling usually will
not be reversible error when the same evidence is subsequently
admitted without objection[;]" i.e. "overruling an objection to
evidence will not result in reversal when other such evidence was
received without objection, either before or after the complained-of
ruling[, ...] whether the other evidence was introduced by the
defendant or the [s]tate." Leday v. State, 983 S.W.2d
713, 717-18 (1998).
(4) Accordingly,
appellant's first and second points of error, claiming Fifth and
Sixth Amendment violations, are overruled.
Appellant complains in his fourth and fifth points of error that
the admission of evidence regarding the "Texas Seven" prison
escapees and their murder of a peace officer during their "escape
rampage" was irrelevant to any special issue and violated his
Fourteenth Amendment right to due process. After the state rested
its case, the defense called a corrections consultant, Steve
Martin, to testify about the operation of Texas prisons. During
direct examination, Martin opined that the longer a prisoner's
sentence is, the more incentive he may have to try to escape. On
cross-examination, the state expanded on Martin's remarks about
the possibility of escapes from the prison system, at one point
bringing up the infamous "Texas Seven." At no time during this
testimony did appellant object to this evidence. Appellant has
failed to preserve this issue for our review.
(5) Tex. R. App.
P. 33.1. Points of error four and five are overruled.
We affirm
the judgment of the trial court.
Johnson, J.
Delivered:
May 19, 2004
En banc
Do Not
Publish
*****
1. Unless otherwise
indicated all references to Articles refer to the Texas Code of
Criminal Procedure.
2. The original opinion on
direct appeal was handed down on October 25, 2000. However, this
opinion was later withdrawn and a new opinion issued on March 7,
2001.
3. Appellant asserts that a
pretrial motion to suppress his confession preserved error on all
of the statements he made to Guyton because it referred to all "statements
made by the Defendant." Even assuming that this motion included
statements made outside his confession, a notation on the order
signed by the judge indicates that appellant withdrew this motion
in open court. Therefore, the motion preserves nothing.
4. We note that an exception
to this rule is that a defendant may respond to extraneous offense
evidence admitted over objection. Leday, supra
at 718 n.9. However, in this case, appellant was not responding to
the extraneous offense evidence; his brother's testimony was
elicited by the state on cross-examination.
5. Appellant asserts that he
preserved this issue for review via a pretrial motion to exclude
extraneous offense evidence and a trial motion to preclude the
state's use of specific instances of misconduct. However, these
motions addressed extraneous acts purportedly committed by
appellant and "malevolent small-town rumor" but made no mention of
the "Texas Seven." As discussed above, when Martin was questioned
and testified about the "Texas Seven," appellant made no objection. |
