W.C. DAVIS, Judge.
Appellant was convicted of capital murder. Upon receiving the jury's affirmative answers to the punishment issues, the court assessed punishment at death. See Art. 37.071, V.A.C.C.P.
Appellant alleges fifty-five grounds of error. We will first address his contentions that venirepersons were erroneously excused.
The trial court sustained the State's challenge for cause to three venirepersons —Williams, Simnacher, and Lee—because each of the three expressed a bias against the minimum punishment for the lesser included offense of murder. See Art. 35.16(b)(3), V.A.C.C.P. Appellant does not dispute the showing of such bias. Rather, he contends that the State should not be permitted to utilize Art. 35.16(b)(3) when the bias is against the minimum range of punishment. He argues that the State never relies upon a minimum punishment for conviction or punishment and, thus, cannot be harmed by such a bias.
The State's interest is in fair and impartial jurors, in accord with our legal system's basic tenet to insure that every defendant is accorded a fair and impartial trial. The State seeks, or should seek, to uphold the integrity of the jury system. Therefore, the State is permitted to challenge a juror who cannot be fair and impartial because he will not consider the full range of punishment. Whether the State later urges the jury to assess the minimum or the maximum is of no moment.
Appellant invites us to overrule settled case law on this issue. We decline the invitation. The State is entitled to jurors who will consider the full range of punishment.
Venireperson Pippi and venireperson Keller were excused upon the State's challenge for cause. Each professed opposition to the death penalty and would vote "no" to the three punishment questions under Art. 37.071(b), V.A.C.C.P., regardless of the evidence, to prevent imposition of the death penalty. Keller was unequivocal in so stating. Pippi initially said that she was opposed to the death penalty in all cases, that she would never impose it, and that she was firm in that belief. Further questioning followed:
Pippi was then questioned by the defense attorney:
Both jurors were properly excused. Wainwright v. Witt, ___ U.S. ___, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Williams v. State, 682 S.W.2d 538 (Tex.Cr.App.1984); Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983).
The grounds of error are overruled.
Appellant challenged five venirepersons on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The five venirepersons —Shaffer, Albough, Gann, Alders, and Bush—all stated that they would answer the punishment questions "yes" only if the State proved, beyond a reasonable doubt, that the answers should be "yes"; they would answer "no" if the State did not so prove. There was some confusion about the two stages of a capital murder trial. However, once the procedure was clarified all of the venirepersons said they would vote "no" to the punishment questions if the State failed to prove them beyond a reasonable doubt, and said they would not automatically vote for the death penalty if they found appellant guilty.
Art. 35.16(a)(10), V.A.C.C.P. states that a challenge for cause may be made for the following reason:
Stancil said that based upon what he had read he believed someone killed a police officer. Stancil told defense counsel that he had expressed an opinion previously in discussions with some of his policemen friends. He also said that he did not know whether appellant was the one who shot the officer. The court questioned him:
During the discussion with the court as to whether or not Stancil should be excused, the prosecutor specifically cited and quoted from Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980). Barefoot is controlling in the instant case; Stancil said he could base his verdict on the evidence presented and nothing else. He was qualified under Art. 35.16(a)(10). See Barefoot.
The ground of error is overruled.
Prior to the selection of the jury, appellant filed a motion for a change of venue under Art. 31.03, V.A.C.C.P. The State filed affidavits controverting the motion. At the hearing, appellant introduced several newspaper articles and photographs. No witnesses were called by either side. The court overruled the motion.
The applicant seeking a change of venue bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful. Absent such a showing, the trial judge is within the limits of his discretion in denying the change of venue. Ussery v. State, 651 S.W.2d 767 (Tex.Cr.App.1983); James v. State, 546 S.W.2d 306 (Tex.Cr.App.1977). The test is whether outside influences affecting the community's climate of opinion as to a defendant are inherently suspect. Banks v. State, 643 S.W.2d 129 (Tex.Cr. App.1983); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1960).
The few articles that were introduced appeared in the local newspapers immediately after the murder. The trial was held about four months later. Appellant
Appellant argues that his motion to quash the indictment should have been granted. First, he contends that the indictment is vague because it does not define "peace officer" under Art. 2.12, V.A.C. C.P.
Under the rationale of Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981) (opinion on rehearing) it is doubtful that the term "peace officer" need be defined at all. As stated in Thomas and reiterated in Ferguson v. State, 622 S.W.2d 846 (Tex.Cr. App.1981) (opinion on rehearing), and Castillo v. State, 689 S.W.2d 443 (1985), facts pertaining to the defendant's acts and conduct may be essential to giving notice—the manner and means of committing an offense may indeed be facts necessary to be alleged. But, facts not necessary to provide notice but that are rather essentially evidentiary, need not be alleged in an indictment because the indictment need not plead the evidence relied upon by the State. Castillo, supra, at 447. The term "peace officer" does not pertain to an act or omission of the accused.
Further, when a term is defined in the statutes, it need not be further defined in the indictment. Thomas, supra. "Peace officer" is statutorily defined. Art. 2.12. "Peace officer" is analagous to "owner" and for the same reasons need not be more specifically alleged. Further definition will not assist or affect the defense. Thomas, supra.
In any event, the allegation was specific: "to-wit: a police officer for the City of Dallas."
The fact that the allegation in the instant case did not allege that Dallas was an incorporated city is, for the same reasons, of no significance. The motion to quash was properly overruled.
Appellant also contends that the allegation, "shooting ... with a handgun ..." is too vague and subject to multiple interpretations. Appellant does not say what these other interpretations might be, and we do not know of any. The allegation is sufficient.
Finally, appellant contends that the description of how Officer McCarthy was in lawful discharge of an official duty is "vague and ambiguous as to time and place and the manner and means of investigation on radio patrol." The face of the indictment sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Jeffers v. State, 646 S.W.2d 185 (Tex.Cr.App.1981); Haecker v. State, 571 S.W.2d 920 (Tex.Cr. App.1978).
The allegation in the instant indictment does not describe an act of appellant, nor does it pertain to his conduct. Rather, it is directed toward the conduct of the peace officer. Cf. Castillo, supra. We need not decide whether an allegation of the statutory
Appellant contends that the indictment is fundamentally defective because it fails to allege that the act occurred in Dallas County. The contention is without merit. The indictment states:
The indictment specifically states that the offense occurred "in the County and State aforesaid," referring to Dallas County which was named previously. The ground of error is overruled.
Appellant attacks the sufficiency of the evidence, contending that there is no evidence that the police officers were acting in the lawful discharge of an official duty, or that appellant knew that the deceased was a police officer. Appellant also contends that the cause of death was not established under Art. 4447t, V.A.C.S.
Carol Stockman testified that she met appellant at a bar in Dallas on February 22, 1981. Appellant introduced himself and bought her several drinks, while drinking three "kamikazes" himself. After chatting for approximately thirty minutes, appellant asked Stockman if she wanted to smoke some marihuana. She agreed and they went to appellant's car, where he rolled a "joint". They drove to White Rock Lake and smoked the "joint" on the way. Appellant parked on a dirt road located adjacent to Lawther Drive. Stockman said it was a little after midnight by this time.
Appellant began kissing and fondling Stockman. She told him to stop, but he reclined both seats, climbed over her, and sat in the passenger seat. Appellant continued to fondle her and again she told him to stop. Stockman testified that appellant got angry because she would not let him touch her and he hit his hand on the dashboard. She felt a cold, heavy object hit her foot. As she reached down to find out what it was, appellant grabbed her arm and picked up a silver pistol. He pointed the pistol at her and told her to take off her clothes. She did so. Appellant performed oral sex on Stockman and attempted several times, unsuccessfully, to have sexual intercourse before finally succeeding. He told her he was sorry, that he did not mean to hurt her, and that he hoped she did not hate him.
Some time later, while appellant was attempting to have oral sex with her, Stockman heard a car nearby. She sat up and saw a police car drive by on Lawther Drive. She told appellant, but he did not look. He said, "No, it's not." She told him it was a police car and told him to look. He turned around and looked at the police car. Stockman testified that the car was a marked police car, complete with emblems, sirens and red lights. The police car circled around Lawther Drive and came up the dirt road toward appellant's car. Stockman said, "There's the police," and hurriedly began putting on her clothes. Appellant just sat in the car. He did not attempt to put on his clothes.
Stockman heard more shots in the distance and a few minutes later a police officer pulled her out of the car. She told the officer she had been raped, but he acted as though he did not believe her.
Phillip Brown, a police officer for the City of Dallas, testified that on February 22, 1981, he and his partner, John McCarthy, were on radio patrol for the 11:30 p.m. to 7:30 a.m. shift. Brown testified that part of their duties as police officers was to drive around White Rock Lake and investigate any parked motor vehicles. He said the area was a high crime area.
At approximately 1:30 a.m. on February 23, 1981, Brown and McCarthy were patrolling the White Rock Lake area, driving on East Lawther Drive. Brown was driving their marked Dallas Police car. Seeing a car parked just off Lawther road as they drove by, they circled back and drove up the dirt road toward the parked vehicle to investigate. Brown pulled the police car parallel to and about ten feet away from the parked car. When they drove up they could see only one person sitting in the car, on the passenger side.
Brown got out of his car, walked over to the driver's door, shined his flashlight in the window, and knocked on the window. He saw two people in the car, one sitting and one partially laying down in the front seat. The female, who was sitting, reached over and unlocked the door. Brown opened the door, and stepped back and to the rear of the car. Neither appellant nor Stockman looked at Brown. He said, "Come on kids, it's time to be moving out of here." Stockman said, "What do you mean `kids.'" Brown replied, "Adults generally have more intelligence than being out here like this and besides that, you could go to jail for being out here like this." Brown testified that Stockman was dressed but that appellant was totally naked.
Brown said he had no intention of arresting the two and simply wanted them to leave. He turned to walk back to the patrol car to resume patrol. He saw McCarthy also turning to return to the police car. McCarthy was standing between the left front tire and the driver's door of appellant's car, about four feet from Brown. Appellant opened the passenger door and stepped out of the car. Appellant said, "I'm sorry, Officer," and Brown saw his right arm start to move up and then saw a reddish-orange flash and heard three quick shots. Brown saw McCarthy lying on the ground next to the tire of appellant's car. Brown fired two shots at appellant over the roof of the car and then ducked down behind the car. Appellant ran toward the lake and Brown fired another shot at him and chased him. Appellant dodged several trees and picnic tables, jumped over some logs and ran into the lake. Brown yelled at him to stop and fired a fourth shot at him. Appellant swam a few more yards and then stopped, stood up with his arms straight out to the side, and turned around. Appellant told Brown, "I'm sorry. Please don't hurt me." Brown yelled for him to come out of the water, which he did. Brown handcuffed him and went back up the hill to the cars.
McCarthy was rushed to the hospital, where he died several days later.
Sergeant Henry Horn of the Dallas Police Department testified that he arrived at the scene of the crime between 2:00 and 3:00 a.m. on February 23, 1981. He assisted in gathering evidence and making measurements. Horn found a Clerke .32 caliber chrome revolver forty-seven feet away from appellant's car, beside a tree.
Allen Jones, a firearms examiner for the Dallas County Forensic Laboratory, testified that he examined a .357 magnum caliber Smith & Wesson belonging to McCarthy, a .38 caliber Smith & Wessen belonging to Brown, and a .32 caliber Clerke revolver found at the scene of the murder. Jones explained that when an officer fires a weapon in the line of duty, the weapon is routinely submitted to the laboratory to determine if it is operating normally. McCarthy's gun contained six live rounds and Brown's gun contained two live rounds and four spent rounds. All three weapons were in normal operating condition.
Jones said that because a Clerke revolver is a low quality weapon, a bullet fired from it can almost never be matched to a particular weapon by the rifling characteristics that are used to match other guns.
Dr. Besant-Mathews was the medical examiner for Dallas County on February 25, 1981. He testified that McCarthy died as a result of a gunshot wound to the back of his head. The gunshot wound caused the brain to swell and caused pressure on the brain. McCarthy died as a result. Besant-Mathews also said that the wound was located in the right side of the back of the head, which was consistent with Brown's version of the shooting.
Appellant's first sufficiency contention is that the evidence does not show that the officers were engaged in the lawful discharge of an official duty. Brown testified that part of their duties as police officers was to patrol the White Rock Lake area and investigate parked motor vehicles. He said they were performing that duty when McCarthy was shot. The evidence is sufficient.
Appellant also contends that the evidence does not show that he knew McCarthy was a police officer. Brown testified that just before appellant shot McCarthy he said, "I'm sorry Officer." This statement, by itself, shows that appellant knew McCarthy was a police officer. Furthermore, the record reflects that both officers were wearing their uniforms and driving a marked police car which had sirens and lights mounted on the roof. Stockman testified that she told appellant the police were there and that the police car was clearly visible. The evidence is sufficient to prove that appellant knew
Appellant's last contention concerning sufficiency is that the cause of death was not established under Art. 4447t, V.A.C.S.,
For the same reasons, appellant's requested charge defining death under Art. 4447t and applying the same was properly refused. The ground of error is overruled.
Appellant complains of two instances in which the trial court sustained the State's objection to questions asked of Stockman by appellant's attorney. The defense attorney questioned Stockman as follows:
The State objected, arguing that the question about courtrooms was improper impeachment. There was a discussion out of the presence of the jury concerning Stockman's pending misdemeanor shoplifting case. The court permitted the defense attorney to question Stockman about that pending case, but sustained the State's objection to the above-quoted question about courtrooms.
Art. 38.29, V.A.C.C.P., governs the impeachment of witnesses by prior offenses. Ordinarily, a witness may not be impeached by a pending charge. The exception to this rule is that a court may permit impeachment by pending charges to show the bias, prejudice or interest of the witness in testifying. Massengale v. State, 653 S.W.2d 20 (Tex.Cr.App.1983). The question asked in the instant case was not a proper impeachment question under either Art. 38.29 or the bias exception. The question attempted to circumvent the prohibitions of Art. 38.29 and give the jury the impression that Stockman was a criminal and thus familiar with courtrooms. The court did not err in sustaining the objection to the question.
The second question about which appellant argues also concerns Stockman. The defense attorney asked Stockman how many times appellant had performed oral sex on her. He continued questioning her:
The prosecutor objected, stating that the question was not material to anything. The court sustained the objection.
Appellant argues that the question was proper because it shows the sexual knowledge of Stockman. Such knowledge is irrelevant to any issue in the case. The
Appellant contends that the court erred in permitting Officer Evandon to testify that he heard Stockman tell his partner that appellant had raped her. Evandon and his partner arrived on the scene shortly after the shooting. His partner took Stockman out of appellant's car and handcuffed her. As they took her out of the car she said she had been raped. Evandon said she seemed upset.
The State argues that King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982) controls the issue and that Stockman's statement should be considered a rape victim's complaint or "outcry," or a spontaneous exclamation. We do not decide whether Stockman's statement constitutes either. Stockman testified on direct examination that she told the officer who took her out of the car that appellant had raped her. The error, if any, is harmless. Cf. Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Cr.App. 1980).
Appellant claims that he should have been permitted to ask Evandon whether he "was aware that she [Stockman] took and flunked a polygraph test?" Earlier in the trial, during cross examination, appellant's attorney asked Stockman if one of the men who had questioned her had told her that he did not believe her story and had called her a "damn liar." Stockman asked defense counsel if he was "talking about the man who gave me a polygraph test?" Stockman denied that a redheaded man who had questioned her had called her a liar; she said the polygraph man had called her a liar.
Appellant contends that this earlier testimony by Stockman allowed him to question Evandon later about whether or not Stockman "took and flunked the polygraph test."
It has long been the rule in this State that the results of a polygraph test are inadmissible for all purposes. Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App. 1981); Fernandez v. State, 564 S.W.2d 771 (Tex. Cr.App.1978); Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973). Even if the State and the defendant agree and stipulate to use the results of a polygraph at trial, we have held the testimony to be inadmissible. Fernandez, supra; Romero, supra. Stockman's unwittingly-made remark about a polygraph, does not mean that defense counsel, when examining a different witness, can ask that witness about the results of the polygraph. The testimony is not admissible and we have long held that to be the case. The ground of error is overruled.
In ground of error thirty-three appellant contends that photographs showing a bullet hole in the police car in which McCarthy and Brown were riding, were admitted without establishment of a proper predicate.
Officer Irby was in charge of investigating the murder. He arrived at the scene of the shooting at approximately 4:00 a.m. on February 23. The police car in which McCarthy and Brown had been riding was still there. Irby testified that he saw a bullet indentation on the left rear fender of the police car and that he ordered photographs taken of the indentation. Irby identified State's Exhibits 42 through 46 as photographs of the bullet indentation and stated that the photographs accurately portrayed the scene which they sought to portray.
Earlier in the trial Brown testified that prior to going on duty at 11:30 p.m. on February 22, 1981, he had inspected his police car and found that it was not damaged. In particular, there were no bullet dents or other dents in the left rear fender.
As long as the testimony shows that the photographs fairly and accurately depict the scene on the date of the offense, they are admissible. Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); Stone v. State, 574 S.W.2d 85 (Tex.Cr.App.1978). Irby sufficiently identified the photographs as accurate photographs of the car on the day of the shooting. The ground of error is overruled.
The photographs are not included in the record on appeal. In "Appellant's Designation of the Record on Appeal" he requested that the original of all exhibits submitted into evidence be included in the record. The photographs were not included. However, appellant did not object to their omission pursuant to Art. 40.09, Sec. 7, V.A.C. C.P. Nothing is presented for review. Vanderbilt v. State, 629 S.W.2d 709 (Tex. Cr.App.1982); Paige v. State, 573 S.W.2d 16 (Tex.Cr.App.1978); Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973) (opinion on rehearing); Weedon v. State, 501 S.W.2d 336 (Tex.Cr.App.1973).
In his thirty-fourth ground of error appellant contends that the prosecutor violated Art. 38.22, V.A.C.C.P., and the Fifth Amendment to the United States Constitution. Defense counsel introduced appellant's statement, made to Investigator Irby, in which appellant stated, inter alia, that he was drunk and "[t]he next thing I remember is being out of the car and I guess I shot a police officer." The prosecutor questioned Irby about the statement and asked him if that was the entire conversation that Irby had with appellant at that time. Irby said that it was not. The prosecutor then started to question Irby about the content of the conversation. A hearing was held outside the presence of the jury and the court sustained appellant's objection to testimony concerning the content of conversation not included in the written statement. The jury returned to the courtroom and the prosecutor again asked Irby if the written statement was the entire conversation he had had with appellant. Irby again replied that it was not. Appellant objected to this question and the court sustained the objection. Appellant now complains that this question violated his rights under Art. 38.22 and the Fifth Amendment.
Appellant's objection was sustained. He did not ask that the jury be instructed to disregard the testimony, nor did he move for a mistrial. Appellant must obtain an adverse ruling in order to preserve a matter for review. Torres v. State, 491 S.W.2d 126 (Tex.Cr.App.1973).
Appellant argues that a hypothetical question posed by the State to Dr. Lewis Dyll, a neurologist called by the defense, was not based upon evidence. Appellant does not specify how the hypothetical differed from the evidence, nor does our review of the record reveal any significant differences between Stockman's testimony and the hypothetical question. The question was based upon the testimony of the State's witnesses. See Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980). The ground of error is overruled.
In two grounds of error appellant complains of certain testimony by William Lawson, one of the State's rebuttal witnesses. Lawson was a planetarium instructor for the Garland Independent School District and a college instructor in the study of astronomy. He had several years of experience in the field of astronomy and had published, taught and studied about the subject.
Lawson testified that the early morning hours of February 23, 1981, were very bright. He said approximately 90% of the moon was illuminated, the sky was clear, and visibility was twelve miles.
Lawson agreed that he was not a meteorologist, but he said the information from the National Weather Bureau was used by astronomers and recognized as an authoritative source of information by astronomers.
Appellant does not challenge Lawson's qualifications as an expert in astronomy. He challenges his answers regarding weather conditions and visibility on February 23, contending that because Lawson is not an expert in meteorology, his testimony is hearsay.
The rule in Texas is that an expert may base his opinion partially on facts or data not admissible as evidence if they are a type reasonably relied upon by experts in the field. Holloway v. State, 613 S.W.2d 497 (Tex.Cr.App.1981); Moore v. Grantham, 599 S.W.2d 287 (Tex.1980); Urquhart v. Barnes, 335 S.W.2d 666 (Tex.Civ.App.— Ft. Worth, 1960). Lawson testified that astronomers rely on the information from the National Weather Bureau. Lawson's opinion about the moon and the clearness of the night was based in part on data recognized and utilized by astronomers as authoritative, and in part on his own expertise in astronomy. Assuming that Lawson was a properly qualified expert in astronomy, then under the authorities cited previously his testimony is admissible. See Lewis v. Southmore Savings Assoc., 480 S.W.2d 180 (Tex.1972). The ground of error is overruled.
In his fortieth ground of error appellant contends that the court erred in overruling his motion for mistrial when the prosecutor asked Officer Evandon whether appellant told him his name.
Evandon testified that he arrived on the scene shortly after the shooting. He advised appellant of his Miranda rights and transported him to the jail.
The prosecutor questioned Evandon about appellant's actions at the scene and asked Evandon whether he smelled alcohol or marijuana on or about appellant, and whether appellant had trouble walking or talking. Evandon said that he did not smell alcohol or marijuana and that appellant had no trouble walking or talking. Evandon testified that, in his opinion, appellant was sober.
The prosecutor then asked Evandon whether a defendant charged with an offense involving alcohol must consent before a blood test or breathalyzer test can be administered. Evandon said that was true. Then, apparently in an attempt to show appellant's lack of cooperation generally, and thus infer that he would not have consented to a test for intoxication if one had been offered, the prosecutor asked:
Appellant's objection was sustained and the jury was instructed to disregard the last question. The motion for mistrial was overruled.
Appellant is correct in asserting that his oral statements made while in custody, in response to questioning by the police are not admissible under Art. 38.22, Sec. 3, V.A.C.C.P. The court correctly sustained the objection to the question and instructed the jury to disregard the question. While the question should not have been asked, it is not so prejudicial or inflammatory that the instruction could not cure the error. From our review of the record we do not believe any harm resulted and the court's instruction was sufficient to cure the error. Yarbrough v. State, 617 S.W.2d 221 (Tex. Cr.App.1981); Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978); Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978). The ground of error is overruled.
Appellant contends that during argument at the guilt-innocence phase of trial the prosecutor violated Art. 38.08, V.A.C. C.P., by commenting on appellant's failure to testify. The State argues that the comment
Defense Counsel argued:
The prosecutor then argued:
Defense counsel objected to the statement as a comment on appellant's failure to testify. The court sustained the objection, instructed the jury to disregard the statement and overruled appellant's motion for mistrial. The prosecutor then continued:
The four proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Todd v. State, 598 S.W.2d 286, 296-297 (Tex.Cr.App.1980). In the instant case the defense attorney discussed motive in his argument to the jury. He told the jury essentially that the State had not shown any motive and that they should consider that lack of motive in deciding if appellant shot the police officer.
We have held that reference to motive is a comment on a defendant's failure to testify. Lee v. State, 628 S.W.2d 70 (Tex.Cr. App.1982); Franks v. State, 574 S.W.2d 124 (Tex.Cr.App.1978); Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Minton v. State, 162 Tex.Cr.R. 358, 285 S.W.2d 760 (Tex.Cr.App.1956). However, in these cases the comments which were found to be reversible error were not made in response to argument by the defendant. In the instant case appellant's attorney started the discussion about motive. The State responded to that argument. The State's comment was invited by appellant's earlier argument, and as such does not constitute reversible error. Broussard v. State, 505 S.W.2d 282 (Tex.Cr.App.1974).
Furthermore, although the State's argument may have overemphasized the motive issue, we do not think that it exceeded the scope of the invited error. The jury had been informed of appellant's failure to testify through the defense attorney's argument about motive, as we have characterized such a comment to be. Lee, supra. The defense attorney referred to appellant's knowledge by stating that appellant knew he was facing two police officers. While the State may have pushed the point by referring to cutting open the defendant's head, the gist of the response was invited. See Porter v. State, 601 S.W.2d 721 (Tex.Cr.App.1980); Broussard, supra. Given the facts of the case, which reflect a
In ten grounds of error appellant argues that various requested charges should have been given to the jury at the guilt-innocence phase of trial.
Appellant argues that the evidence raised the issues of voluntary manslaughter, mistake of fact, self-defense, and defense of a third person.
There is no evidence from any source showing that appellant shot the police officer under sudden passion arising from adequate cause. There is no evidence of sudden passion as defined under V.T. C.A. Penal Code, Sec. 19.04. Neither Stockman's testimony nor appellant's statement reflect or suggest such passion. The instruction was properly refused. See Bravo v. State, 627 S.W.2d 152 (Tex.Cr. App.1982); Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979).
Similarly, there is nothing that raises mistake of fact, self-defense or defense of a third person. The testimony indicates that Stockman told appellant that the men were police officers, that appellant saw the car and the uniformed officers, and that he knew they were police officers. Appellant argues that because he was naked and therefore somehow vulnerable, and because everything happened so fast, he could have believed that he was being attacked by an unknown assailant or that he had to protect Stockman from such attack. The evidence simply does not suggest such a scenario. None of the evidence presented raised the idea that appellant did not know the men were police officers and certainly nothing raised self-defense or defense of a third person. The charges were properly refused. See Smith v. State, 676 S.W.2d 584 (Tex.Cr.App.1984); Knowles v. State, 672 S.W.2d 478 (Tex.Cr.App.1984); Montgomery v. State, 588 S.W.2d 950 (Tex. Cr.App.1979). The grounds of error are overruled.
Appellant also argues that his requested charges on aggravated assault on a police officer, deadly assault on a police officer, and aggravated assault should have been given. He argues that "the removal of the deceased from life support systems without properly following the procedures enumerated in Art. 4447T," was an intervening cause of death and justified the jury in considering that appellant was not guilty even of murder. As we stated previously, there is no evidence that the deceased was ever connected to life support systems. Furthermore, there is no evidence that appellant was guilty only of one of the three lesser offenses of assault. See Broussard v. State, 642 S.W.2d 171 (Tex.Cr.App.1982). The contentions are without merit.
Appellant contends that the trial court should have given his requested charge applying the law to the facts for the offense of capital murder. Appellant argues that the court did not charge the elements of capital murder in a proper manner. Appellant requested a rephrasing of the same elements on which the court charged the jury. The court's charge included all of the elements and correctly charged the jury that:
Appellant objected to the refusal of the court to instruct the jury that "parking in the place where the deceased [sic] was alleged to have parked, was not a violation of any ordinance or laws of the State of Texas." First, there is no evidence whether or not appellant was violating a law by parking where he did. Second, the indictment alleged that the lawful discharge of an official duty was investigation of a parked car and evidence was adduced to show that. There was no allegation either in the indictment or at trial that appellant was violating the law by parking where he did. In light of the allegation in the indictment and the proof at trial, appellant's requested charge was properly refused. It was of little consequence whether or not he was violating a law by parking at that location. The ground of error is overruled.
Finally, appellant complains of the court's failure to charge the jury:
Appellant asserts, without citation to the record, that Stockman and Brown were both impeached by appellant's cross examination and that numerous statements contradicting their pre-trial interview or deposition were brought out. Appellant relies on Henley v. State, 387 S.W.2d 877 (Tex. Cr.App.1965) (opinion on rehearing).
Appellant does not specify to what "numerous impeaching contradictory statements" he is referring. Such contention does not comport with the requirements of Art. 40.09, Sec. 9, V.A.C.C.P.; Cook v. State, 611 S.W.2d 83 (Tex.Cr.App.1981).
Furthermore, as the State points out, the rule set forth in Henley, supra, is applied when the State impeaches their own witness with a prior statement. A limiting instruction explaining to the jury that the prior statement is not evidence protects a defendant from having the jury consider the State's impeachment of their own witness as evidence against the defendant. The same situation is not presented when a defendant impeaches the State's witness. If a court refuses a defendant's request for an instruction limiting the jury's consideration of impeaching testimony brought out by a defendant of a State's witness, the rationale of Henley does not apply. See Henley, supra, at 881-882. The ground of error is overruled.
We turn now to the punishment phase of the trial. Appellant challenges the sufficiency of the evidence to prove 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. See Art. 37.071(b)(2), V.A.C.C.P.
A review of the facts of the instant offense, show the cold-blooded, senseless shooting of a police officer who, with his partner, had simply told appellant and his companion to leave the area. The evidence also shows that earlier in the evening, appellant had threatened Stockman with a gun.
Two reputation witnesses who had known appellant when he lived in his hometown of Soddy-Daisy, Tennessee, testified that he had a reputation for being violent and dangerous. Two psychiatrists testified that appellant was a sociopath who would probably commit future criminal acts of violence and would constitute a continuing threat to society.
Maurice Dean Sneed, one of the reputation witnesses who testified that appellant had a bad reputation for being dangerous and violent, testified that he had grown up with appellant in Soddy-Daisy. He said that appellant had a juvenile record, had thrown rocks at police officers, violated curfew, hit other people in the community with bats, bricks and sticks, and shot at them with a BB gun. He also said that appellant had assaulted a police officer.
When appellant was being "booked" at the police station he refused to cooperate with the police, cursed them, and fought with them until he was forcibly subdued.
As a result of the burglary appellant was placed on probation for four years. After six months he stopped reporting to his probation officer.
Gregory Teshy and Sherri Woodall testified that on August 20, 1980, appellant approached their car, opened the passenger door, pointed a shotgun at them, and demanded their money. When Teshy argued, appellant told him he would kill him if he did not give him the money.
When the facts of the instant offense are considered with the additional evidence of violence and threatened violence on the part of appellant, including the robbery, the burglary and ensuing arrest, the psychiatric testimony and the reputation testimony, we conclude that the evidence is sufficient to support the jury's finding as to appellant's future dangerousness under Art. 37.071(b)(2). See Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983); Bravo v. State, 627 S.W.2d 152 (Tex.Cr.App.1982); and Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1981).
Appellant objected to the testimony of Maurice Dean Sneed "because his testimony as to bad character for being peaceful and law abiding did not pertain to the place where the Defendant resided." This constitutes appellant's entire discussion under this ground. Although we are uncertain exactly of what appellant complains, we interpret his contention to go to the remoteness of the time at which Sneed became familiar with appellant's reputation.
Sneed testified that he had known appellant all of his life and had grown up with him in Soddy-Daisy, Tennessee. Appellant left Soddy-Daisy at the age of eighteen, two or three years prior to the murder. Sneed testified that appellant's reputation in Soddy-Daisy for being a peaceful, law-abiding citizen was bad.
For impeachment purposes the prior character of a defendant for being peaceful and law abiding, like that for being truthful, is some evidence of what his present character is. Thus, testimony regarding prior character is admissible if it is not so remote as to have no probative value in indicating present character. See 1 R.Ray, Texas Law of Evidence Civil and Criminal, Secs. 650-651 (Texas Practice, 3rd Ed.1980), and cases cited therein. McCormick on Evidence, Sec. 44, (3rd Ed. 1984). The question of remoteness, consistent with impeachment practices, rests in the discretion of the trial court. Brown v. Perez, 89 Tex. 282, 34 S.W. 725 (Tex.Cr. App.1896); Jenkins v. State, 146 Tex.Cr.R. 364, 175 S.W.2d 83 (1943). Davis v. State, 545 S.W.2d 147 (Tex.Cr.App.1976).
The jury would be deciding "whether there is a probability that [appellant] would commit criminal acts of violence that would constitute a continuing threat to society." Evidence of appellant's past acts and reputation may be introduced to assist the jury in answering that question. The trial court did not abuse its discretion in permitting Sneed to testify to appellant's reputation. Sneed had known appellant all his life and appellant had only been gone from Soddy-Daisy for two or three years. Appellant was free to offer reputation witnesses to counter such testimony.
In addition, objections based upon remoteness go to the weight, not the admissibility of the testimony. Sanne v.
In his 42nd ground of error appellant contends, without stating any reasons for his contention, that the prosecutor asked an "improper character question." The prosecutor questioned Mark Ralston, a police officer for the City of Soddy-Daisy, about appellant's reputation for being peaceful and law abiding. He then asked Ralston if he knew appellant's reputation for being dangerous and violent. Appellant objected to this question.
Past acts, prior convictions, reputation and other evidence the court deems relevant may be presented at the punishment phase of a capital murder trial. See Art. 37.071(a), V.A.C.C.P.; see also Mitchell v. State, 650 S.W.2d 801 (Tex.Cr. App.1983); Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983). Although the common practice has been for the State to ask the reputation question in terms of "peaceable and law abiding," the reputation question phrased essentially in converse fashion — "dangerous and violent"—is also permissible. The ground of error is overruled.
Appellant's next ground also deals with the witness Ralston. The defense attorney asked Ralston if "he knew" that appellant was involved in his church and if "he knew" whether appellant went to Vacation Bible School. The prosecutor picked up this line of questioning:
At this point appellant's objection was sustained.
The prosecutor then asked:
Appellant objected and asked that the jury be instructed to disregard the question and answer, which was done by the court. His motion for mistrial was overruled.
A reputation witness testifies on the basis of hearsay information, not personal opinion. Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972). The witness made clear that the information was rumor and hearsay, not personal knowledge. This does not make it improper information in the context of reputation testimony. See Brown, supra. The prosecutor should not have phrased his question in terms of "fact." However, any error in so doing was cured by the court's instruction to disregard and by Ralston's answer that he was told by another about the church issue. It was clear from Ralston's answer that his knowledge was based upon hearsay. The ground of error is overruled.
Appellant contends that Officer Linda Fulgham should not have been permitted, over his objection, to testify to appellant's bad reputation. Appellant states that Fulgham's testimony that she learned about appellant's reputation after the instant offense and that her knowledge "grew out of his arrest" for the instant offense disqualified her from testifying.
Fulgham said she had learned about appellant's reputation after the instant offense. She also stated that she had heard about a burglary and a robbery committed by appellant. She further stated that she had discussed appellant's general reputation with members of the community, both police officers and civilians.
Discussions of an accused's bad reputation need not take place before the date of the alleged offense, as long as they include matters other than the crime for which the accused was on trial. Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975). Knowledge of specific acts alone as a basis for reputation testimony violates the rationale for admitting such testimony. Wagner v. State, 687 S.W.2d 303 (Tex.Cr.
Fulgham testified that she had discussed appellant's general reputation with others in the community. She was qualified to testify to appellant's reputation. Mitchell, supra.
The ground of error is overruled.
In two grounds of error appellant contends that the trial court erred in allowing testimony about the details of a prior burglary, for which he received a probated sentence, and a prior unadjudicated robbery committed by appellant. He claims that admitting such testimony under Art. 37.071(a), V.A.C.C.P., in a capital murder trial, while not admitting it in a trial where Art. 37.07, V.A.C.C.P. applies, violates equal protection. An identical contention was raised and rejected in Smith v. State, 683 S.W.2d 393 (Tex.Cr.App.1984). We have consistently held that evidence of unadjudicated extraneous offenses are admissible at the penalty stage of a capital murder trial absent a showing of unfair surprise. Smith v. State, 683 S.W.2d 393 (Tex.Cr.App.1984); Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980); Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980). Admission of these offenses does not render proceedings fundamentally unfair or deprive an accused of due process or equal protection of the laws. Smith, supra; Williams v. State, 622 S.W.2d 116 (Tex.Cr. App.1981).
The grounds of error are overruled.
Appellant contends the court erred in permitting two psychiatrists to testify, over objection, to appellant's future dangerousness. Art. 37.071(b)(2). His contention is based, inter alia, upon the failure of the State to qualify these witnesses as experts in predicting future dangerousness or to show that their predictions would be based upon scientifically accepted principles. Appellant contends that the prediction of future dangerousness is not an exact science, is too speculative, and has no scientific basis.
At the pre-trial hearing on the issue of expert qualifications, appellant read from and now relies in his brief upon the criteria set forth in Holloway v. State, 613 S.W.2d 497 (Tex.Cr.App.1981). In Holloway this Court held that the burden of proving the qualifications of an expert witness lies upon the proponent of the testimony. That burden may not be met merely by showing professional credentials in a calling which relates to the matter in question. Special knowledge of the specific matter upon which the expert is to testify must be shown. Further, "`even though a witness' qualifications as an expert may be established or admitted, his opinion may be inadmissible if there is no evidence of technical or scientific support for it.'" Holloway, supra at 501.
Dr. James Grigson testified that he specialized in psychiatry, and he detailed his educational and work background. He said that he had examined over 10,000 individuals charged with criminal offenses, including over 850 charged with murder and 120 charged with capital murder. During cross examination Grigson admitted that in every capital murder case in which he had testified about future dangerousness he had testified in the affirmative.
He said he was competent to give his opinion based upon a hypothetical question because of his medical and psychiatric training, and his experience in examining murder and capital murder defendants over the past sixteen years. When asked if he could cite any medical authority or research that states that a psychiatrist is competent to testify based solely on a hypothetical question, Grigson said he was probably the best authority on that area. He then cited two articles which he said stated that the best indication of future acts of violence are a history of prior acts of violence in the past.
Grigson qualified as an expert under the requirements set out in Holloway, supra, because he demonstrated that, based on his experience and on a couple of articles supporting his view, "he possessed special knowledge" in the area of predicting future violence.
Appellant's contention that a psychiatrist's testimony on the issue of future dangerousness in the form of a hypothetical question should not be permitted was addressed and overruled by this Court in Vanderbilt v. State, 629 S.W.2d 709 (Tex. Cr.App.1981); and Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980). The United States Supreme Court also addressed the issue of psychiatric testimony in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983):
Barefoot v. Estelle, 103 S.Ct. at 3396 & 3397.
The grounds of error are overruled.
Appellant contends that the hypothetical question posed to Drs. Grigson and Griffith contained statements which were not part of the evidence and that the doctors should not have been permitted to answer it.
Of the six facts of which appellant complains, five were supported by the evidence. The one fact of which appellant complains —that "the same man was in the car covering his arm while in the car," was not included in the hypothetical question posed to either Grigson or Griffith. The grounds of error are overruled.
Appellant objected that the remarks were outside the scope of the answer, and asked that the jury be instructed to disregard the remarks. The court sustained the objection and instructed the jury. Appellant's motion for mistrial was overruled.
We agree with appellant that the answer was not responsive and that Grigson also knew from a pre-trial instruction, that he should not have answered in such a fashion. However, Grigson also testified that in his opinion appellant was a "severe sociopath." Dr. Griffith had also testified that appellant was a sociopath who would get worse. In light of this evidence and the instruction to disregard, the motion for mistrial was properly overruled. See Wilhoit v. State, 638 S.W.2d 489 (Tex.Cr.App. 1982); Richardson v. State, 624 S.W.2d 912 (Tex.Cr.App.1981).
Benjamin Hal Nethery, appellant's father, testified at the punishment phase of trial. During cross examination of Nethery, the prosecutor elicited the information that Nethery was paying for his son's lawyers, for the psychiatrist, and for the psychologist who testified for the defense. He asked Nethery if he thought it unusual that a psychiatrist and psychologist for whom he paid did not even examine appellant. Then he asked Nethery if he understood that if the psychiatrist and psychologist had examined appellant, the State would have had a right to have him examined. Appellant objected: "that calls for a question of law." The objection was sustained. The jury was instructed to disregard it and appellant's motion for mistrial was overruled.
On appeal appellant contends that the prosecutor's question violated appellant's fifth Amendment right to remain silent during psychiatric examination as set forth in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Appellant's contention on appeal does not comport with his objection at trial. The issue is not preserved for review. Stringer v. State, 632 S.W.2d 340 (Tex.Cr.App.1982); Darden v. State, 629 S.W.2d 46 (Tex.Cr.App.1982); Carrillo v. State, 591 S.W.2d 876 (Tex.Cr. App.1979).
In a multifarious ground of error appellant complains of the charge to the jury on punishment. Appellant requested instructions that the burden of proof rests upon the State; that before any issue may be answered "yes", all jurors must be convinced beyond a reasonable doubt; that if the jury unanimously determines that the State has proven an issue beyond a reasonable doubt, the foreman will sign his name to the form to so reflect; that any juror who has reasonable doubt should vote "no", and that if the jurors do not unanimously vote "yes" or at least ten in favor of "no", then no answer should be given and the foreman should not sign his name. Appellant requested that a form be given to the jury stating that "because at least ten jurors have a reasonable doubt as to the matter inquired about in this special
The charge as given included substantially all the requested instructions. Appellant's requested form was properly refused. The ground(s) of error are overruled.
Appellant also objected to the court's definition of temporary insanity caused by intoxication, contending that it was not complete. His requested definition was denied.
The court refused appellant's requested charge that: "`insanity' as used herein means `that as a result of intoxication the Defendant either did not know that his conduct was wrong or he was incapable of conforming his conduct to the requirements of the law he allegedly violated.'"
While the court's charge tracked V.T.C.A. Penal Code, Sec. 8.04 correctly, we agree with appellant that it should have included a definition of "insanity" as it applies to Sec. 8.04. "Insanity" as applied under Sec. 8.04 is not the same as that defined by the entire section of V.T.C.A. Penal Code, Sec. 8.01. Rather, it means that as a result of intoxication the defendant (1) did not know his conduct was wrong or (2) was incapable of conforming his conduct to the requirements of the law he violated. Hart v. State, 537 S.W.2d 21 (Tex.Cr.App.1976); V.T.C.A. Penal Code, Sec. 8.04, Practice Commentary; see also V.T.C.A. Penal Code, Sec. 8.01(a) in part only.
However, in the instant case, the failure of the court to so charge is not error because the evidence did not raise the issue and no charge was required.
Evidence of appellant's intoxication on February 22 and 23, came from Carol Stockman, Officer Brown and Investigator Irby. Stockman said appellant drank three "kamikaze" drinks in her presence and shared a marihuana cigarette with her. She said he did not act or appear to be intoxicated at any time. She was with appellant for several hours.
Brown testified that appellant shot three times over the car, hitting McCarthy in the head with one of the shots. Appellant then ran more than eighty yards to the lake, at night, dodging trees, picnic tables and barbecue grills. Brown testified that he was in good physical condition and that he could not catch up with appellant. In fact, he testified that appellant managed to bring his handcuffed arms from behind his back to the front of his body several times— something that is fairly difficult to do when one is sober.
Irby testified that he took a written statement from appellant after his arrest. In his statement, appellant said that he remembered drinking beer, whiskey, and vodka, and he remembered smoking some marihuana. He remembers driving and stopping near some water, and trying to
Appellant was not entitled to a charge on temporary insanity caused by intoxication. The inclusion of the general charge on intoxication under Sec. 8.04 could only benefit appellant. No error is presented.
The ground of error is overruled.
The trial court overruled appellant's motion to sequester the jury during the entire trial, because of publicity about the case. The court admonished the jurors daily not to discuss the case, read the papers, watch television or listen to the radio concerning the case. During the punishment phase of the trial the court questioned each juror individually about whether they had followed his instructions generally and whether they had read a particular newspaper article concerning the case. Two jurors had heard the beginning of a radio newscast concerning a witness in the case but had immediately turned off the radio. The rest of the jurors had not heard or read anything about the case.
Whether to grant a motion to sequester the jury is a matter within the discretion of the trial court. Art. 35.23, V.A.C.C.P.; Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981). Absent a showing of harm, there is no abuse of discretion in failing to sequester the jury. Evans, supra; Creel v. State, 493 S.W.2d 814 (Tex. Cr.App.1973).
In the instant case the jurors followed the court's instructions. No harm is shown. The ground of error is overruled.
In his last ground of error, without any discussion or citation of authority, appellant attacks the constitutionality of Art. 37.071, V.A.C.C.P. The ground is overruled. Sanne v. State, 609 S.W.2d 762 (Tex.Cr.App.1980); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
The judgment is affirmed.
CLINTON, J., concurs in the result.
The prosecutor then questioned her as follows:
Although the prosecutor could have better clarified the distinction between the two stages of the trial, Alders said she would follow the law and hold the State to its burden of proof at both stages.
(a) A person will be considered legally dead if, based on ordinary standards of medical practice, there is the irreversible cessation of spontaneous respiratory and circulatory functions.
(b) If artificial means of support preclude a determination that spontaneous respiratory and circulatory functions have ceased, a person will be considered legally dead if in the announced opinion of a physician, based on ordinary standards of medical practice, there is the irreversible cessation of all spontaneous brain function. Death will have occurred at the time when the relevant functions ceased.
(c) Death is to be pronounced before artificial means of supporting respiratory and circulatory functions are terminated.
(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirement of the law he allegedly violated.
(b) The term `mental disease or defect' does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
The underlined part is the only part of Sec. 8.01 applicable to a definition of temporary insanity due to intoxication.