Alfredo Suarez, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: August 2, 2017
• Docket: 07-17-00047-CR
• Status: Published

Opinion

ACCEPTED 07-17-00047-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 8/2/2017 3:07 PM Vivian Long, Clerk

No. 07-17-00047-CR

FILED IN In the Court of Appeals for the Seventh Judicial 7th COURT OF APPEALS AMARILLO, TEXAS District of Texas 8/2/2017 3:07:59 PM VIVIAN LONG CLERK In Amarillo, Texas ___________________

Alfredo Suarez Jr., Appellant,

v.

The State of Texas, Appellee. ___________________

Appeal from Cause Number CR-16C-064 from the 222nd Judicial District Court of Deaf Smith County, Texas, Honorable Roland Saul Presiding ___________________

Brief for the Appellee ___________________

Chris Strowd Assistant Criminal District Attorney 235 East Third, Room 401 Hereford, Texas 79045 Telephone: (806) 364-3700 Facsimile: (806) 363-7039 cstrowd@deafsmithcounty.texas.gov State Bar No. 19425400 Table of Contents Page

Statement Regarding Oral Argument …………………………………………iii

Table of Authorities…...…………………………….………………..……..…iii

Statement of the Case ...……………………………….………….…………….2

Statement of Facts.………...…………………………….………..………….8–8

Summary of the Argument …….…………………………………………….9–10

Argument and Authorities:

Reply to Point of Error One: Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime of aggravated assault with a deadly weapon beyond a reasonable doubt……………………………………………………………...………..10–12

A. After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that Suarez was the person who intentionally, knowingly, or recklessly shot Reyes and Torres with a firearm beyond a reasonable doubt…………………………………………….12–13

B. After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that Suarez shot Reyes and Torres, using a deadly weapon, to-wit: a firearm, beyond a reasonable doubt.......................................................................................................14–15

Prayer………………………………………………….………..……….…….15

Certificate of Compliance...…………………………………………………...16

Certificate of Service…………………………………………………….…….16

ii Statement Regarding Oral Argument

That State is not requesting oral argument.

Table of Authorities

Cases: Page

Barnes v. State, 876 S.W.2d 316 (Tex.Crim.App. 1994)…………………..….…11

Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007)………………………..10

Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000)…………………..……….12

Fields v. State, 932 S.W.2d 97 (Tex.App.—Tyler 1996, pet. ref’d)…..………….14

Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004)…………….…………..13

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560 (1979)………...………………………………………………………..…........10, 13

Lancon v. State, 253 S.W.3d 699 (Tex.Crim.App. 2008)…………………….…..15

Lee v. State, 239 S.W.3d 873 (Tex.App.—Waco 2007, pet. ref’d)……………….12

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997)…………………………..11

Pendleton v. State, No. 07-15-00108-CR (Tex.App.—Amarillo 2015, no pet.) (not designated for publication)……………………………….11, 12

Welch v. State, 993 S.W.2d 690 (Tex.App.—San Antonio 1999, no pet.)……….15

Statutes, Codes, and Rules:

TEX. R. APP. P. 3.2 (West 2003)………………………..…………….................1

TEX. R. EVID. ANN. 702 (Vernon Supp. 2016)…………………………….......14

iii In the Court of Appeals for the Seventh Judicial District of Texas ___________________

The State of Texas, Appellee.

___________________

Appeal from Cause Number CR-16C-064 from the 222nd Judicial District Court of Deaf Smith County, Texas, Honorable Roland Saul Presiding ___________________

To the Honorable Justices of the Court of Appeals:

COMES NOW the State of Texas, in the above-entitled and numbered cause,

and respectfully submits this Reply Brief. Based on Rule 3.2 of the Texas Rules of

Appellate Procedure, the parties will be referred to by their real names. Citation to

the Clerk’s Record will be “C” and a page number and citation to the Reporter’s

Record will be first to the volume number, then “R,” followed by page number(s).

1 Statement of the Case

Alfredo Suarez Jr., appellant, was charged in a two-count indictment with the

offenses of aggravated assault with a deadly weapon. (C. 4–5). These offenses

were alleged to have occurred on the same day, and the deadly weapon for each

was described in the indictment as a firearm. Id. The indictment also included

enhancement paragraphs that, if true, would raise the level of offense from a

second-degree felony to a first. Id.

When the case was called for trial, both parties announced ready. (3 R. 14).

The jury returned guilty verdicts for the indicted charges. (C. 53). And Suarez

pleaded true to the enhancement paragraphs. (5 R. 52–53). Having elected the jury

to assess punishment, they returned a verdict of 15 years’ and 5 years’ confinement

on count one and two, respectively, finding the enhancement paragraphs true. (C.

40, 54–59). Notice of appeal was timely filed on January 20, 2017. (C. 41).

Statement of Facts

1. Gunfire at the Cowboy Car Wash.

On the evening of February 8, 2016, Luis Reyes (Reyes), the victim alleged in

count one, was at his house working on his truck along with Omero Torres

(Torres), the victim alleged in count two. (3 R. 203; 4 R. 116; C. 4). Afterwards,

Reyes agreed to drive Torres into town to his father’s home. (4 R. 117). They left

together in Reyes’s gray Mitsubishi Eclipse—Reyes was driving and Torres was

2 riding in the passenger seat. (3 R. 204, 206). Before dropping Torres off, they

stopped at a dollar store and Reyes bought glass cleaner and towels. (4 R. 117).

They then drove to the Cowboy Car Wash to clean the interior of Reyes’s vehicle.

(3 R. 203–04; 4 R. 118). At the car wash, Reyes parked his vehicle by a vacuum

cleaner station. (3 R. 136; 7 R. State’s 31-B).

While at the vacuum cleaner station, Reyes heard Torres state, “Here is –

Tejano is coming. Let’s get out of here. Let’s get out of here.” (4 R. 119).

Sometime earlier, “Tejano” had threatened to kill Reyes. (4 R. 115). At the time

of this earlier threat, Reyes was standing outside his residence and “Tejano” was in

a green pickup. Id. Reyes, however, did not drive away from the car wash because

he claimed to not be afraid of “Tejano.” (4 R. 119).

“Tejano” was identified by Reyes and Torres to be Suarez. (3 R. 119–23, 125,

201; 4 R. 18, 113). Torres stated in court that he knows Suarez as “Tejano.” (3 R.

201). Daniel Garcia, a Hereford Police Department officer, also knew that Suarez

went by the name “Tejano.” (3 R. 169–70).

Reyes recognized Suarez as the driver of the green Ford pickup. (4 R. 123).

Suarez was alone in the vehicle and stopped by Reyes’s vehicle. (4 R. 119–20).

When Suarez got out of his pickup, Reyes saw that he had a gun in his hand as he

walked up to Reyes’s vehicle. (4 R. 119–20, 123–25). Next, Reyes heard a loud

3 noise and felt pain. (4 R. 120–21). Reyes then heard Suarez state that the next time

he would kill him. Id.

Meanwhile across the street at the Fast Stop convenience store, Savannah Soto

(Soto), a clerk, heard a pop that sounded like fireworks and saw a Ford pickup

pulling away from the car wash. (3 R. 223–26). A man then entered the store and

claimed to have been shot and wanted her to call the police. Id. He told her that he

was with a friend and that he thought his friend was dying. (3 R. 226–27). When

Soto saw blood, she realized it was not a prank and called 911. Id. The 911 call

she made was at approximately 8:34 P.M.—she told the 911 operator that a person

had been shot at the car wash next to Fast Stop. (3 R. 30-31; 7 R. State’s 1). After

Soto reported the shooting, the man left the store and walked back towards the car

wash. (3 R. 229).

Reyes drove Torres to the Hereford Regional Medical Center (HRMC)

emergency room because he was bleeding from his arm. (4 R. 126). Instead of

staying at the hospital with Torres, Reyes drove home. (4 R. 127–28). Surveillance

cameras at the hospital recorded Torres being dropped off from a small gray

vehicle and Torres entering the emergency room lobby. (7 R. State’s 2).

At HRMC, Torres was initially assessed by Rita San Miguel (San Miguel), a

registered nurse. (3 R. 37, 40). While being assessed, he repeatedly told San

Miguel that he had been shot. (3 R. 40, 42–43). San Miguel noticed that he was

4 bleeding from his arm from what she described as entry and exit wounds. (3 R.

46). The injury appeared to her to be a gunshot wound. Id. Dr. Earl Chase, an

emergency room physician, described the trauma to Reyes’s arm as a penetrating

injury to the right forearm that was consistent with a gunshot wound. (3 R. 102,

106–08). After the initial medical treatment at HRMC, Torres was transferred to

Northwest Texas Hospital in Amarillo. (3 R. 45).

Later, Reyes was brought by ambulance from his residence to the HRMC

emergency room. (3 R. 46; 4 R. 59–61). He had what appeared to be a gunshot

injury to his face. Id. The medical records for Torres and Reyes were admitted into

evidence. (3 R. 41–42; 7 R. State’s 36 & 37). The paramedic who treated Reyes at

his residence stated in the medical records that Reyes’s injury was a gunshot

wound to the face, but that the incident had occurred at a different location while

Reyes was sitting in his vehicle. (4 R. 55–56; 7 R. State’s 36). Reyes told the

paramedic that while he was sitting in his vehicle, he looked towards the driver’s

side window before being shot in the face with a pistol. (3 R. 54).

Once Reyes arrived at the emergency room, he was treated by Dr. John

Thomas Gregg, a surgeon who headed the trauma team at HRMC. (4 R. 89–92).

He described Reyes’s injury as a penetrating injury that disrupted teeth and

fractured the underlying top of his mandible. Id. According to Dr. Gregg, the

injury to Reyes was consistent with a gunshot wound. (4 R. 95). And based on the

5 severity of this injury, Reyes too was transferred to Northwest Texas Hospital for

further medical treatment. (4 R. 94).

2. The trail to Alfredo Suarez Jr.

The Cowboy Car Wash was equipped with surveillance cameras, and the

police accessed the video recordings of this incident. (3 R. 153). Segments of

these recordings were played in court. (3 R. 153–55; 7 R. State’s 31-B). In the

video, Reyes’s car is seen parked next to a vacuum cleaner station. (3 R. 136, 155–

57; 7 R. State’s 31-B). The camera then recorded a green Ford pickup driving

along the front of Reyes’s parked vehicle and stopping next to it; the driver of this

vehicle is then seen on the video getting out and approaching the driver’s side door

of Reyes’s vehicle. (3 R. 155–57; 7 R. State’s 31-B). This same person is also

seen leaning in towards Reyes’s vehicle. Id. Next, Torres is seen getting out of

Reyes’s vehicle from the passenger side and quickly walking towards the Fast Stop

convenience store. Id. While Torres is walking away, he is seen on the video

shaking his right arm and looking over his left shoulder in the direction of Reyes’s

parked vehicle. (7 R. State’s 31-B). The camera also captured the driver of the

green Ford pickup getting back into his vehicle and driving away as Reyes’s

vehicle remained at the vacuum cleaner station. Id.

The police photographed the crime scene, including the blood trail that led

from the car wash to the convenience store. (3 R. 130; 7 R. State’s 62–63, 66, 70–

6 82, 93–120; 8 R. 121–30, 132–33). Blood was also discovered inside Reyes’s

vehicle along with a human tooth. (4 R. 83, 85–86; 7 R. State’s 26-A). A firearm

was never recovered; however, bullet fragments were discovered in various

locations at and near the vacuum cleaner station where Reyes had parked his car

that evening. (3 R. 158–59; 4 R. 67, 70–72, 74–77). These fragments were marked

and photographed in their location by the police. (4 R. 72–73; 8 R. 169–76, 178–

81).

When Reyes arrived home that evening, he told his wife that “Tejano” had hit

him. (4 R. 130). While in the emergency room, he identified “El Tejano” as the

person responsible for his injuries. (4 R. 31). And while he was in the hospital in

Amarillo, Kirsten Williams, a Hereford police officer that was not directly

involved in the investigation, presented to Reyes a photographic lineup that

consisted of six photographs. (3 R. 119–23). Reyes identified the photograph of

Suarez as the person responsible for shooting him. (3 R. 119–23; 4 R. 133, 135).

His level of certainty in this identification was 100%. (3 R. 125).

The investigation was furthered when Martin Hood (Hood), a Texas Ranger,

met with Torres to get a recorded statement from him concerning this incident. (3

R. 175–76). During this meeting, Torres appeared to be afraid and in hiding. (4 R.

10, 14). Hood showed him a photographic lineup. (3 R. 178–80). Although Torres

7 was reluctant to cooperate, he selected the photograph of Suarez from the lineup,

indicating a level of certainty of 100%. (3 R. 178–80; 4 R. 18).

The police attempted to identify and locate the green Ford pickup that was

used by the shooter. Officer Garcia went to Suarez’s residence. (3 R. 181–82).

Parked at this residence was a green Ford pickup. Id. Officer Garcia took

photographs of this vehicle, which were admitted at trial. (3 R. 182–83; 7 R.

State’s 136–37). This vehicle was registered to Suarez’s father. (3 R. 184). It

was further described as a green, extended cab Ford pickup with a gold or copper

stripe; it had a Whiteface Ford sticker just below the tailgate handle, a toolbox in

its bed, and damage to its left rear fender. (3 R. 184–86). In officer Garcia’s

opinion, the pickup parked at Suarez’s residence was the same one that was used

during the shooting and captured on the car wash video. (3 R. 186–87). Erik

Huerta, a Deaf Smith County deputy, testified that he had seen Suarez driving the

same green Ford pickup that was recorded on the car wash video. (4 R. 43). And

Hereford Police Department corporal Somchai Thongngoen testified that in the

past, he had conducted a traffic stop on Suarez while he was driving a green,

extended cab Ford pickup. (3 R. 88–89). Further, in his opinion, the pickup on the

car wash video appeared to be the same one driven by Suarez during the traffic

stop. (3 R. 89–91).

8 Summary of the Argument

The evidence was legally sufficient to support the conviction of Suarez in

count one and two of the indictment for the offense of aggravated assault with a

deadly weapon. Reyes, the victim alleged in count one, identified Suarez by the

street name “Tejano.” During the investigation, Reyes selected Suarez from a

photographic lineup as the one responsible for his injuries. Reyes also identified

Suarez in court as the person who injured him. Reyes saw Suarez with a pistol in

his hand as he approached his vehicle at the car wash on the evening of the

shooting. Torres, the victim alleged in count two, also selected Suarez from a

photographic lineup conducted during the investigation. He too testified in court

that he knew Suarez as “Tejano.” The vehicle used by the shooter was the same

vehicle that had been previously used by Suarez. This same vehicle was parked at

Suarez’s residence after the shooting.

A firearm was used by Suarez to cause the injuries to Reyes and Torres. The

penetrating injuries to both Reyes and Torres were described by medical

professionals as being consistent with gunshot wounds. Bullet fragments were

found by the police at the crime scene. That evening, a clerk at a nearby

convenience store heard a pop that sounded like fireworks. And Reyes and Torres

both claimed to have been shot. The evidence, viewed in the light most favorable

to the verdict, supports the conclusion that a rational juror could find beyond a

9 reasonable doubt that Suarez committed the offenses with a deadly weapon as

alleged in the indictment.

Argument and Authorities

Reply to Point of Error One: Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime of aggravated assault with a deadly weapon beyond a reasonable doubt.

Under point of error one, Suarez essentially argues that the evidence was

legally insufficient to connect him to a firearm and to the shooting. (Appellant’s

brief at 27–28). The State asserts that there was ample evidence to identify Suarez

as the perpetrator of these offenses.

In applying the legal sufficiency standard set out in Jackson v. Virginia, “the

relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed. 560 (1979) (emphasis in original). This standard accounts for the

fact finder’s duty “to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Id. “Therefore,

in analyzing legal sufficiency, [the court] determines whether the necessary

10 inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Id.

The review of “all the evidence includes evidence that was properly and

improperly admitted.” Id. “When the record supports conflicting inferences, the

[court] presumes that the fact finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.” Id. “Direct and

circumstantial evidence are treated equally: circumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt.” Id. The fact finder is the sole judge of

the credibility of the witnesses and of the weight to be afforded their testimony.

Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994).

“The sufficiency standard set forth in Jackson is measured against a

hypothetically correct jury charge.” Pendleton v. State, No. 07-15-00108-CR at 7

(Tex. App.—Amarillo 2015, no pet.) (not designated for publication); see Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct

jury charge will accurately state the law, is authorized by the indictment, will not

increase the State’s burden of proof nor restrict the State’s theories of liability, and

will adequately describe the offense for which the defendant was tried. Id. The

statutory elements of the offense as supplemented by the charging instrument is the

11 law as authorized by the indictment. Pendleton v. State, No. 07-15-00108-CR at 7;

Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).

In the instant case, the indictment charged Suarez with intentionally,

knowingly, or recklessly causing bodily injury to Luis Reyes and Omero Torres by

shooting them with a firearm. (C. 4). On appeal, Suarez has not complained of the

trial court’s charge, nor any other element of the charged offense other than

identity and the use of a firearm.

A. After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that Suarez was the person who intentionally, knowingly, or recklessly shot Reyes and Torres with a firearm beyond a reasonable doubt.

In Lee v. State, the court found that the evidence was legally sufficient to

show that the defendant was the person who shot the victim, as an element of

aggravated assault, because the victim identified the defendant from a

photographic lineup and identified the defendant as the shooter at trial. 239 S.W.3d

873, 878 (Tex. App.—Waco 2007, pet. ref’d).

In the instant case, there was both direct and circumstantial evidence that

established the identity of the shooter. Suarez was identified by Reyes and Torres

from photographic lineups. Each knew Suarez by the street name “Tejano.” Reyes

consistently stated that “Tejano” was responsible for his injury. Even officer

12 Garcia knew that Suarez went by the name “Tejano.” In court, Reyes identified

Suarez as the shooter.

The vehicle used in the shooting, and captured on the car wash video, was

shown to have been driven in the past by Suarez. This same vehicle was

discovered parked at Suarez’s residence after the shooting. And Suarez had

threatened to kill Reyes before the shooting took place.

While Torres refused to identify Suarez in court as the shooter, the jury was

entitled to weigh and judge the credibility of Torres, fairly resolve conflicts in

testimony, weigh all the evidence, and draw reasonable inferences from basic facts

to ultimate facts. Jackson v. Virginia, 443 U.S. at 318–19, 99 S. Ct. 2781, 61

L.Ed.2d 560 (1979). In short, the jury was free to disregard Torres’s trial

testimony in favor of his pretrial identification of Suarez and accept Reyes’s

testimony along with the other evidence that established Suarez’s identity as the

shooter. Each fact need not point directly and independently to the defendant’s

guilt, as long as the cumulative effect of all the incriminating facts is sufficient to

support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004). Reyes and Torres were both injured inside the vehicle because of the

shooting at the car wash. Suarez was identified as that shooter. After viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential element of identity beyond a reasonable doubt.

13 B. After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that Suarez shot Reyes and Torres, using a deadly weapon, to-wit: a firearm, beyond a reasonable doubt.

The use of expert testimony is admissible if it will help the jury understand the

evidence or determine a fact in issue. Fields v. State, 932 S.W.2d 97, 108 (Tex.

App.—Tyler 1996, pet. ref’d); see TEX. R. EVID. ANN. 702 (Vernon Supp.

2016). “An expert witness is one who will testify to matters requiring ‘scientific,

technical, or other specialized knowledge.’” Id. The expert’s qualifications may be

based on his “knowledge, skill, experience, training, or education.” Id. Suarez has

not challenged Dr. Chase or Dr. Gregg’s expertise in the field of medicine.

The testimony of Dr. Chase and Dr. Gregg, as fact and expert witnesses,

helped the jury understand the nature of the injury to Reyes and Torres. The

testimony of paramedic Nathaniel Miller also assisted the jury in this regard. The

doctors described each injury as penetrating and consistent with a gunshot wound.

Reyes testified that he was shot. Bullet fragments were found at the scene of the

crime by officers Garcia and Ruland. The clerk at the Fast Stop stated that she

heard a loud pop that sounded like fireworks. Torres told the clerk that he had

been shot. As noted above, the probative value of direct and circumstantial

evidence is the same. In the instant case, both types of evidence were present. The

jury was free to believe Dr. Chase and Dr. Gregg and concluded that the injuries

14 were gunshot wounds. The jury was also free to believe that the bullet fragments

that were recovered by the police at the crime scene were the same ones that had

been used in a firearm that ultimately caused the injuries to Reyes and Torres. It is

within the exclusive purview of the jury to determine the credibility of the

witnesses and the weight to be given their testimony. Lancon v. State, 253 S.W.3d

699, 707 (Tex. Crim.App. 2008). A jury is entitled to accept one version of the

facts and reject another, or reject any part of a witness’s testimony. Id. The jury

also maintains the power to draw reasonable inferences from basic facts to ultimate

facts. Welch v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio 1999, no

pet.). After viewing this evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential element that a deadly

weapon, to-wit: a firearm, was used by Suarez to shoot Reyes and Torres beyond a

reasonable doubt.

Prayer

Because the cumulative evidence supported a rational juror’s finding that

Suarez was guilty of aggravated assault with a deadly weapon as alleged in count

one and two of the indictment, the State prays the Court overrule Suarez’s point of

error and affirm the judgment of the trial court.

15 Respectfully submitted,

/s/ Chris Strowd Chris Strowd Assistant Criminal District Attorney 235 East Third, Room 401 Hereford, Texas 79045 Telephone: (806) 364-3700 Facsimile: (806) 363-7039 Email: cstrowd@deafsmithcounty.texas.gov State Bar No. 19425400

Certificate of Compliance

The undersigned certifies that according to the Microsoft Word count tool, this document contains 4,166 words.

/s/ Chris Strowd Assistant Criminal District Attorney Deaf Smith County, Texas

Certificate of Service

This is to certify that a true and correct copy of the above and foregoing Brief for the State has been served on W. Brooks Barfield Jr., attorney for appellant, by placing a copy into the United States mail addressed to P.O. Box 308, Amarillo, Texas 79105, on August 2, 2017.

/s/ Chris Strowd Chris Strowd

16 Page 1

Caution As of: Aug 02, 2017

ODELL BARNES, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 71,291

COURT OF CRIMINAL APPEALS OF TEXAS

876 S.W.2d 316; 1994 Tex. Crim. App. LEXIS 21

February 9, 1994, Delivered

SUBSEQUENT HISTORY: [**1] As Amended appellant's conviction, as well as the jury's finding of March 21, 1994. future dangerousness. The court also rejected appellant's Rehearing denied by, 03/23/1994 assertion that the trial court erred in sustaining a prose- Writ of certiorari denied Barnes v. Texas, 513 U.S. 861, cutorial challenge for cause to a jury venireperson where 115 S. Ct. 174, 130 L. Ed. 2d 110, 1994 U.S. LEXIS 6187 the person was a perfect example of a vacillating veni- (1994) reman on the death penalty issue. The court found no Writ of habeas corpus denied, Certificate of appealability error in the admission of six photographs of the victim, denied Barnes v. Johnson, 184 F.3d 816, 1999 U.S. App. holding that their probative value was not outweighed by LEXIS 17458 (5th Cir. Tex., 1999) the danger of unfair prejudice. In addition, the court found no error in the denial of appellant's reasonable PRIOR HISTORY: Appeal from LUBBOCK doubt instruction even though recent precedent required County on Change of Venue from WICHITA County such an instruction because the precedent was only to be applied prospectively. The court also found no error in DISPOSITION: Finding no reversible error, we af- the placement of the burden of proving mitigating factors firm the judgment of the trial court. on appellant because neither legislation nor the constitu- tion required the prosecution to negate mitigating cir- CASE SUMMARY: cumstances.

OUTCOME: The court affirmed appellant's capital PROCEDURAL POSTURE: Appellant sought review murder conviction, rejecting his arguments that the evi- of his conviction of capital murder pursuant to Tex. Pe- dence did not support his conviction, that the trial court nal Code Ann. § 19.03(a)(2), entered in the Lubbock erred in sustaining a prosecutorial challenge for cause, County Court (Texas), asserting that the evidence was that photographs were improperly admitted, that his rea- insufficient to sustain his conviction and sentence, and sonable doubt instruction was improperly refused, and that the trial court committed various error relating to that the burden of proving mitigating factors was im- jury selection, evidence admission, and jury instruction, properly placed upon him. inter alia. LexisNexis(R) Headnotes OVERVIEW: Appellant was convicted of capital mur- der after he stabbed and beat his victim in the course of a robbery or burglary, then shot her point blank through the head. He appealed, asserting various error. The court Criminal Law & Procedure > Appeals > Standards of affirmed. It first found the evidence sufficient to sustain Review > Substantial Evidence > General Overview Page 2 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

Evidence > Procedural Considerations > Weight & [HN5] In reviewing the sufficiency of the evidence at the Sufficiency punishment phase, an appellate court views the evidence [HN1] In reviewing a sufficiency question, an appellate in the light most favorable to the verdict and determine court must view the evidence in the light most favorable whether any rational trier of fact could make the finding to the verdict and determine whether any rational trier of beyond a reasonable doubt. The burden is on the state to fact could have found the essential elements of the crime prove punishment issues beyond a reasonable doubt. Tex. beyond a reasonable doubt. Where the state's case is Code Crim. Proc. Ann. art. 37.071(c). based on circumstantial evidence and was tried prior to the 1991 decision abandoning the exclusion of the rea- sonable hypothesis standard, an appellate court will use Criminal Law & Procedure > Sentencing > Imposition the exclusion of reasonable hypotheses approach as the > Factors method for analyzing sufficiency. It is not necessary that Evidence > Scientific Evidence > Psychiatric & Psy- every fact point directly and independently to a defend- chological Evidence ant's guilt. It is enough if the conclusion is warranted by [HN6] A jury is permitted to consider a variety of factors the combined and cumulative force of all the incriminat- when determining whether a defendant will pose a con- ing circumstances. tinuing threat to society. Among those factors are: the circumstances of the capital offense, including the de- fendant's state of mind and whether he was working Criminal Law & Procedure > Appeals > Standards of alone or with other parties; the calculated nature of the Review > General Overview defendant's acts; the forethought and deliberateness ex- Evidence > Procedural Considerations > Weight & hibited by the crime's execution; the existence of a prior Sufficiency criminal record, and the severity of the prior crimes; the [HN2] In reviewing the evidence, it is proper to consider defendant's age and personal circumstances at the time of the events that occurred before, during, and after the the offense; whether the defendant was acting under du- commission of an offense. ress or the domination of another at the time of the of- fense; psychiatric evidence; and character evidence. This list is not exhaustive. Criminal Law & Procedure > Juries & Jurors > Prov- ince of Court & Jury > General Overview Criminal Law & Procedure > Witnesses > Credibility Criminal Law & Procedure > Sentencing > Imposition Evidence > Procedural Considerations > Weight & > Factors Sufficiency [HN7] In its determination of special issues, a jury is [HN3] The jury is the exclusive judge of the credibility entitled to consider all the evidence presented at the of witnesses and of the weight to be given their testimo- guilt/innocence phase of the trial, in addition to the evi- ny. dence presented at the punishment phase. The circum- stances of the offense and the events surrounding are sometimes sufficient in themselves to sustain a yes an- Criminal Law & Procedure > Appeals > Standards of swer to the second special issue regarding future dan- Review > Substantial Evidence > General Overview gerousness. Evidence > Procedural Considerations > Weight & Sufficiency [HN4] An appellate court must hold the evidence suffi- Criminal Law & Procedure > Criminal Offenses > cient if the exculpatory aspects of an appellant's version Homicide > Murder > General Overview of events necessarily contradict or conflict with inculpa- Criminal Law & Procedure > Accusatory Instruments tory inferences drawn from other circumstantial evidence > Indictments > General Overview presented by the state, and when all the evidence viewed [HN8] An indictment need not allege the constituent in the light most favorable to the verdict would rationally elements of the aggravating feature which elevates mur- support a jury verdict of guilt to a degree of confidence der to capital murder. beyond a reasonable doubt.

Criminal Law & Procedure > Juries & Jurors > Chal- Criminal Law & Procedure > Appeals > Standards of lenges to Jury Venire > General Overview Review > General Overview Criminal Law & Procedure > Trials > Judicial Discre- Evidence > Procedural Considerations > Weight & tion Sufficiency Page 3 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

[HN9] Where more than 100 jurors are called for regular cumstances unique to each individual case should also be service, the decision to grant a special venire is within considered. the discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 34.01. Criminal Law & Procedure > Witnesses > Presentation Criminal Law & Procedure > Jury Instructions > Par- Criminal Law & Procedure > Juries & Jurors > Chal- ticular Instructions > General Overview lenges to Jury Venire > Death Penalty > General Over- [HN14] Error in admitting improper testimony may be view corrected by a withdrawal and an instruction to disregard [HN10] In a capital case, the state is entitled to jurors unless it appears the evidence is clearly calculated to who will impartially consider and decide the facts and inflame the minds of the jury and is of such character as conscientiously apply the law as charged by the court. to suggest the impossibility of withdrawing the impres- sion produced on their minds.

Criminal Law & Procedure > Juries & Jurors > Chal- lenges to Jury Venire > Bias & Prejudice > General Criminal Law & Procedure > Search & Seizure > Overview Search Warrants > Affirmations & Oaths > General Criminal Law & Procedure > Juries & Jurors > Chal- Overview lenges to Jury Venire > Equal Protection Challenges > [HN15] Generally, incorporating the appendices to an General Overview affidavit by reference is preferred. It does not invariably [HN11] Tex. Code Crim. Proc. Ann. art. 35.14 provides follow that absent such an incorporation the affidavit a vehicle with which to exclude potential jurors that an must fail. advocate believes are prejudiced against his cause. These peremptory challenges may be made for any reason so long as they are not exercised in a racially discriminatory Criminal Law & Procedure > Search & Seizure > manner. Tex. Code Crim. Proc. Ann. art. 35.261. Search Warrants > Affirmations & Oaths > General Overview [HN16] Affidavits for search warrants must be tested and Criminal Law & Procedure > Juries & Jurors > Chal- interpreted by magistrates and courts in a common sense lenges to Jury Venire > Death Penalty > General Over- and realistic fashion. view Criminal Law & Procedure > Juries & Jurors > Per- emptory Challenges > General Overview Criminal Law & Procedure > Jury Instructions > Par- Criminal Law & Procedure > Sentencing > Capital ticular Instructions > Reasonable Doubt Punishment > Death-Qualified Jurors [HN17] Although a definitional instruction of the term [HN12] Subject to the constraints of Tex. Code Crim. reasonable doubt is now required by recent case law, this Proc. Ann. art. 35.261, a party need not assign a reason holding is applied prospectively only. for exercising his peremptory strikes, even where the discernable purpose of the strike is to exclude a prospec- tive juror who is not in favor of the death penalty. Criminal Law & Procedure > Trials > Continuances Criminal Law & Procedure > Trials > Defendant's Rights > Right to Fair Trial Evidence > Demonstrative Evidence > Photographs Criminal Law & Procedure > Witnesses > Presentation Evidence > Relevance > Confusion, Prejudice & Waste [HN18] If a witness's name is not furnished a defendant of Time before trial despite a court order, any error in allowing [HN13] A court may consider many factors in determin- that witness to testify over a claim of surprise is made ing whether the probative value of evidence is substan- harmless by defendant's failure to object or move for a tially outweighed by the danger of unfair prejudice. continuance. These factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, whether they are Criminal Law & Procedure > Sentencing > Capital close-up, and whether the body depicted is clothed or Punishment > Bifurcated Trials naked. A court, however, should not be limited by this Criminal Law & Procedure > Sentencing > Guidelines list. The availability of other means of proof and the cir- > Adjustments & Enhancements > Criminal History > General Overview Page 4 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

Criminal Law & Procedure > Sentencing > Imposition > Evidence Criminal Law & Procedure > Juries & Jurors > Jury [HN19] A trial court may admit any evidence it deems Nullification > Jury Instructions relevant to sentencing at the punishment phase of a capi- Criminal Law & Procedure > Jury Instructions > Par- tal murder trial. ticular Instructions > General Overview Criminal Law & Procedure > Sentencing > Capital Punishment > Mitigating Circumstances Criminal Law & Procedure > Trials > Judicial Discre- [HN24] In instances where mitigating evidence is pre- tion sented, all that is constitutionally required is a vehicle by Criminal Law & Procedure > Sentencing > Imposition which the jury is able to consider and give effect to the > General Overview mitigating evidence relevant to a defendant's back- Evidence > Procedural Considerations > Exclusion & ground, character, or the circumstances of the crime. Preservation by Prosecutor This vehicle commonly takes the form of a jury nullifi- [HN20] That a defendant committed another crime while cation instruction or a fourth special issue. already on probation for other offenses has a bearing on the question of whether he would pose a future danger to society. Tex. Code Crim. Proc. Ann. art. 37.071(b)(2). Criminal Law & Procedure > Sentencing > Capital Punishment > Mitigating Circumstances [HN25] It is not unconstitutional to place a burden on a Criminal Law & Procedure > Appeals > Standards of defendant to establish sufficient mitigating circumstances Review > Abuse of Discretion > Evidence by a preponderance of the evidence. Evidence > Procedural Considerations > Exclusion & Preservation by Prosecutor [HN21] Absent a clear abuse of discretion, a trial court's Criminal Law & Procedure > Sentencing > Capital ruling on the admission of evidence will not be dis- Punishment > Mitigating Circumstances turbed. [HN26] Neither legislation nor constitution places a burden of proof upon the state to negate the existence of mitigating evidence. Criminal Law & Procedure > Appeals > Standards of Review > General Overview COUNSEL: For Appellant: Reginald R. Wilson, Wichi- Evidence > Procedural Considerations > Exclusion & ta Falls, Tx. Marty Cannedy, Wichita Falls, Tx. Preservation by Prosecutor [HN22] A trial court need never sort through challenged For Appellee: Barry L. Macha, D. A. & John W. Brash- evidence in order to segregate the admissible from the er, Asst. D. A., Wichita Falls, Tx. Robert Huttash, State's excludable, nor is a trial court required to admit only the Attorney, Austin, Tx. former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, a JUDGES: EN BANC. McCormick, Baird trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer OPINION BY: PER CURIAM on appeal the consequences of his insufficiently specific offer or objection. OPINION

[*319] OPINION Evidence > Hearsay > Rule Components > Nonverbal Appellant was convicted of the offense of capital Conduct murder under V.T.C.A. Penal Code, § 19.03 (a)(2). The Evidence > Procedural Considerations > Exclusion & offense originated in Wichita County, where appellant Preservation by Prosecutor was indicted. Pursuant to defense motion, venue was Evidence > Procedural Considerations > Rulings on changed to Lubbock County. The jury answered the spe- Evidence cial issues affirmatively and punishment was assessed [HN23] A trial court is not required, in the face of a accordingly at death. Article 37.071(b), V.A.C.C.P. 1 global hearsay objection, to cull through a defendant's Appeal to this Court is automatic. Article 37.071(h). pen packet and exclude whatever particular matters he Appellant raises fifteen points of error. We will affirm. may find there that meet that description. Tex. R. Crim. Evid. 103(a)(1). Page 5 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

1 Unless otherwise indicated, all references to and Wednesday, November [*320] 29th. The gun was articles are to those in the Texas Code of Crimi- fully loaded at that time. Wilson had suggested Bass nal Procedure. keep the gun in her bedroom.

[**2] Sufficiency of the Evidence. 3 The transaction papers filled out when Wil- lie Bass purchased the gun list the gun's serial In his fourth point of error, appellant contends that number as NB003602. The gun recovered by the the evidence is insufficient to establish his guilt. In his police, see text post, bears the same serial num- fifth point of error, he asserts that the evidence is insuffi- ber. cient to establish any of the aggravating circumstances required to raise murder to a capital offense, in this case, Bass' bedroom was found in disarray. Dresser burglary or robbery. 2 He further argues the evidence is drawers had been moved and some pulled out. The con- insufficient to show appellant intended to cause the death tents of two purses had been dumped out onto the bed. of Helen Bass. Bass' checkbook was on the floor. A coin purse was found open. A jewelry box was open and appeared to 2 In appellant's indictment it was alleged he have been gone through. An identification card and per- committed murder in the course of committing sonal papers belonging to Bass were found outside near burglary, robbery, and aggravated sexual assault. her chain-link fence. Approximately $ 200 cash was also V.T.C.A. Penal Code, § 19.03(a)(2). At trial, found in the home. however, the trial court instructed the jury as to Johnny Ray Humphrey, appellant's co-worker, had the aggravating offenses of robbery and burglary been with appellant at approximately [**5] 10:00 p.m. only. on November 29th, when he dropped appellant off near The evidence at trial established the following: his home. Appellant was wearing dark-colored coveralls. Bass returned home from work at approximately 11:30 At approximately 10:30 p.m., Robert Brooks, a neighbor, p.m. on November 29, 1989. The next day, Nary Barnes, saw appellant in Bass' yard. Appellant hurdled Bass' appellant's mother and Bass' friend, went to Bass' home wooden fence, fell down, and rolled into the street. Ap- to pick her up for work. No one answered the door. After pellant then got up and went back over Bass' chain-link [**3] arriving at work Barnes became concerned and fence. 4 Brooks testified appellant was wearing dark phoned Sharon Mergerson, Bass' neighbor and green or blue coveralls and a stocking cap. Between 2:00 ex-sister-in-law, to check on the situation. Mergerson a.m. and 3:00 a.m. on November 30th, Patrick Williams immediately went to Bass' home. Upon arrival, she no- saw appellant with a gun and wearing coveralls at the ticed a back door had been forcibly kicked in. She found Holliday Creek Apartments. The apartments are near Bass' body at approximately 4:00 p.m. Mergerson went Bass' home. home and phoned the police. 4 Bass had both a wooden and a chain-link Bass died of a .32-caliber gunshot wound to the fence on different parts of her property. head. Time of death was estimated to be in the early morning hours of November 30th. She was found naked After work on November 30th, Humphrey, appel- and beaten in her bedroom. Aside from the gunshot lant, and Joseph Barnes, appellant's brother, stopped by wound, Bass had been stabbed twice, hit with a the Barnes' home. Appellant stated he had "confiscated" .22-caliber rifle, and struck in the head with a blunt ob- a gun from his father and wished to sell it. Appellant ject. A knife covered with blood was discovered in Bass' went to his bedroom, retrieved the gun from under his kitchen. A bloody lamp with a dent in the base was bed, and gave it to Humphrey. Humphrey later sold [**6] found in Bass' bedroom, along with a .22-caliber rifle the gun to Williams. Humphrey identified the gun at trial that had been broken in half. The police discovered the as the one he obtained from appellant. lamp's mate in another bedroom of the home. Mergerson Williams testified that the gun that he bought from testified that the lamps had been recently purchased. A Humphrey on the afternoon of November 30th was the box for a .32-caliber handgun was also found. However, same one he had seen appellant with earlier the same no gun was recovered at the scene. day. He further stated that a bullet was missing from the Bass did own a .32-caliber handgun. Willie Bass, Jr., gun when he purchased it. Williams later returned the her son, bought her the handgun in April, 1988. 3 Malrie gun to Humphrey's sister, Deborah Ann, when he learned Wilson, Bass' friend, saw [**4] the gun in her posses- of the murder. Deborah Ann then turned the gun over to sion on the morning of November 29th. Wilson had the police. Willie Bass identified the gun as the one he shown Bass how to load the weapon and was attempting had given his mother. to familiarize her with it on Monday, November 27th, Page 6 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

The police recovered dark green coveralls from Jo- Ct. 1428, 79 L. Ed. 2d 752 (1984). It is enough if the seph Barnes' car. Joseph told the officers that the cover- conclusion is warranted by the combined and cumulative alls belonged to appellant. 5 Humphrey testified that the force of all the incriminating circumstances. Id. coveralls were the same coveralls he had seen appellant wearing on the evening of November 29th. Blood later 7 Geesa v. State, 820 S.W.2d 154 removed from the coveralls by a forensic serologist was (Tex.Cr.App. 1991) determined to be type 0 blood, which was the same as [**9] Appellant contends that the presence of his Bass'. Appellant has type A blood. The forensic serolo- fingerprint on the lamp does not show he had ever been gist testified that fifty percent of all African-Americans in decedent's home unlawfully. 8 He argues the presence have type 0 blood. 6 The blood on the coveralls, however, of his fingerprint was not unusual because he had helped also had genetic markers consistent with Bass' blood. do repair work on Bass' home three years before and Bass had allowed appellant to have a party in another 5 Joseph testified that he believed the cover- building on her property. Appellant's mother testified alls actually belonged to his father, but that ap- that appellant had done work for Bass a few weeks be- pellant "wore them all the time." fore her death. Appellant cut down some limbs and [**7] looked for a leak in the back of the house. There is evi- 6 Bass was an African-American. dence, however, that the lamps were purchased shortly Larry Fletcher, a firearms examiner, testified the before Bass' death, and were kept in a front bedroom. bullet removed from Bass' head was the same type that would be fired from the .32-caliber revolver in evidence. 8 Appellant also argues that his presence out- When comparing the fatal bullet to a test bullet fired side of a house thirty minutes before a crime oc- from the revolver, Fletcher could not make a positive curs does not lead ineluctably to his guilt. Fur- determination whether or not the fatal bullet was fired ther, he argues that the footprint on the check- from this exact pistol, because it sustained too much book and blood on the coveralls are inconclusive damage on impact. However, there were other consisten- pieces of evidence. [HN2] In reviewing the evi- cies between the test bullet and the one removed from dence it is proper to consider the events that oc- Bass. curred before, during, and after the commission of the offense. (emphasis added). Thompson v. Dr. Jeffrey Barnard, Chief Medical Examiner of State, 697 S.W.2d 413, 416 (Tex. Cr. App. 1985). Dallas County, performed the autopsy. Barnard testified It is enough if the conclusion of guilt is warranted that Bass' injuries were consistent with having been by the combined and cumulative force of all the caused by the handgun, lamp, broken rifle, and knife incriminating circumstances. Russell, 665 recovered by the police. James Cron, a fingerprint and S.W.2d at 776. footprint expert, testified that appellant's fingerprint ap- peared on the lamp. Further, he stated that the shoeprint [**10] Appellant next argues that Humphrey fab- pattern found on the back of Bass' checkbook matched ricated his testimony and implicated appellant in order the shoe pattern on appellant's shoes. Cron admitted that "to avoid his own date with the hangman." Appellant millions of shoes with that pattern have been produced. supports this hypothesis with the following evidence at trial: Marquita Mackey testified that she saw Humphrey [*321] [HN1] In reviewing a sufficiency [**8] at 5:00 p.m. on November 30, 1989, wearing a pair of question, we must view the evidence in the light most blood-stained dark coveralls. Humphrey had the gun favorable to the verdict and determine whether any ra- with him at the time and he delivered it to Williams in tional trier of fact could have found the essential ele- her presence. She also stated that she later saw the cov- ments of the crime beyond a reasonable doubt. Jackson eralls thrown behind a local playhouse. Nary Barnes tes- v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. tified appellant arrived home between 11:45 and 11:50 2d 560 (1979); Butler v. State, 769 S.W.2d 234, 238 (Tex. p.m. on November 29th and did not leave the house until Cr. App. 1989). Because the State's case is based on cir- the next morning, although she admits that she was cumstantial evidence and was tried prior to this Court's asleep for part of that time. Joseph Barnes testified that decision in Geesa, 7 we will use the "exclusion of rea- appellant did not go into his home on November 30th sonable hypotheses" approach as the method for analyz- and retrieve the gun. He testified that Humphrey got a ing sufficiency. Garrett v. State, 682 S.W.2d 301, 304 paper sack from his own home and then traded it with (Tex. Cr. App. 1984), cert. denied, 471 U.S. 1009, 105 S. someone at the Holliday Creek Apartments. Ct. 1876, 85 L. Ed. 2d 168 (1985). It is not necessary that every fact point directly and independently to the de- [HN3] The jury is the exclusive judge of the credi- fendant's guilt. Russell v. State, 665 S.W.2d 771, 776 bility of witnesses and of the weight to be given their (Tex. Cr. App. 1983), cert. denied, 465 U.S. 1073, 104 S. testimony. Lafoon v. State, 543 S.W.2d 617, 620 (Tex. Page 7 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

Cr. App. 1976). Appellant's argument that Humphrey [HN5] In reviewing the sufficiency of the evidence was the real perpetrator of the crime [**11] was appar- at the punishment phase, we again view the evidence in ently rejected by the jury. [HN4] We must hold the evi- the light most favorable to the verdict and determine dence sufficient if the exculpatory aspects of appellant's whether any rational trier of fact could make the finding version of events necessarily contradict or conflict with beyond a reasonable doubt. See Stoker v. State, 788 inculpatory inferences drawn from other circumstantial S.W.2d 1, 7 (Tex. Cr. App. 1989), cert. denied, 498 U.S. evidence presented by the State, and when all the evi- 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). The bur- dence viewed in the light most favorable to the verdict den was on the State to prove the punishment issues be- would rationally support a jury verdict of guilt to a de- yond a reasonable doubt. Article 37.071(c). [HN6] A gree of confidence beyond a reasonable doubt. Gunter v. jury is permitted to consider a variety of factors when State, 858 S.W.2d 430, 439 (Tex. Cr. App.), cert. denied, determining whether a defendant will pose a continuing U.S. , 114 S. Ct. 318, 126 L. Ed. 2d 265 (1993). Girard threat to society. Among those factors are: v. State, 631 S.W.2d 162, 164 (Tex. Cr. App. 1982). The combined and cumulative force of all the incriminating 1. the circumstances of the capital of- circumstances leads us to conclude that there was suffi- fense, including the defendant's state of cient evidence for any rational trier of fact to conclude mind and whether he was working alone beyond a reasonable doubt that appellant was guilty or with other parties; [*322] of capital murder, and to exclude every other reasonable hypothesis except for that of guilt. Russell, 2. [**14] the calculated nature of the supra, at 776; Johnson v. State, 803 S.W.2d 272, 280 defendant's acts; (Tex. Cr. App. 1990), cert. denied, U.S. , 111 S. Ct. 3. the forethought and deliberateness 2914, 115 L. Ed. 2d 1078 (1991), overruled on other exhibited by the crime's execution; grounds, Heitman [**12] v. State, 815 S.W.2d 681 (1991). 4. the existence of a prior criminal record, and the severity of the prior Appellant separately contends that the State offered crimes; no evidence to prove appellant intended to cause Bass' death. The record shows that Dr. Barnard, testified the 5. the defendant's age and personal gunshot wound sustained by Bass was a "contact circumstances at the time of the offense; wound." He stated a contact wound occurs when the barrel of a gun is in contact or almost in contact with the 6. whether the defendant was acting victim's skin at the time the gun is fired. Further evidence under duress or the domination of another was brought in showing that the gun had been fired at the time of the offense; through two pillows placed closely to Bass' head. Her 7. psychiatric evidence; and8. char- head had also been wrapped in a shirt after the beatings, acter evidence. but prior to the gunshot wound. Dr. Bernard testified this would prevent blood from splattering. The jury could infer that the firing of the gun through two pillows and a Keeton, 724 S.W.2d at 61. As appellant admits, this list shirt would muffle the sound of the shot and prevent is not exhaustive. blood from splattering. Further, the jury could infer that appellant would not fire a gun at such a close range to Appellant argues that the evidence produced at trial Bass' head unless he intended to kill her. Viewing the did not show that appellant's killing of decedent was evidence in the light most favorable to the verdict, we calculated or deliberate. He contends that the State's evi- conclude that a rational jury could have accepted these dence at the punishment phase did not show that his past inferences and from them found the element of intent crimes were violent because no one was hurt and, in one beyond reasonable doubt. See Jackson v. Virginia, 443 instance, the gun used was not real. He further notes that U.S. [**13] at 319. We overrule points of error four the record is bare of psychiatric evidence. He asserts that and five. the fact that he came from a broken and abusive home and that he was capable of remorse over his past mis- Appellant's eighth point of error contends that the deeds should weigh in his favor. evidence was insufficient for the jury to make an affirm- ative finding that he would be a "continuing threat to [HN7] In its determination of the special issues, the society." Article 37.071(b)(2) (second special issue). He jury was entitled to consider all the evidence presented argues that of the eight factors listed in Keeton v. State, [**15] at the guilt/innocence phase of the trial, in addi- 724 S.W.2d 58, 61 (Tex. Cr. App. 1987), most should be tion to the evidence presented at the punishment phase. decided in his favor. Valdez v. State, 776 S.W.2d 162, 166-67 (Tex. Cr. App. 1989), cert. denied, 495 U.S. 963, 110 S. Ct. 2575, 109 L. Page 8 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

Ed. 2d 757 (1990). The circumstances of the offense and probability that appellant would be a continuing threat to the events surrounding [*323] are sometimes suffi- society. Appellant's eighth point of error is overruled. cient in themselves to sustain a "yes" answer to the sec- ond special issue. See Vuong v. State, 830 S.W.2d 929, Guilt/Innocence Phase 935 (Tex. Cr. App.), cert. denied, U.S. , 113 S. Ct. In his thirteenth point of error, 10 appellant complains 595, 121 L. Ed. 2d 533 (1992); Stoker, 788 S.W.2d at 7. that the trial court erred in failing to quash the indict- The evidence in the instant case revealed that appellant ment. Because appellant was charged with murder in the murdered Bass in the course of robbery or burglary. She course of a burglary, he believes that fair notice dictates was beaten and stabbed, and then shot point blank that the State should have been required to "allege bur- through the head in a calculated fashion. Although we glary with intent to commit . . . theft or a felony offense." hesitate to conclude this evidence alone would support a finding of future dangerousness, there was more. 10 The remaining points of error will be ad- At the punishment phase of trial, the State intro- dressed in the order in which they occurred at tri- duced evidence of various extraneous offenses. Appel- al. lant was convicted of the following: (1) in February, [**18] Appellant acknowledges that we have re- 1987, appellant broke into a home, hit the female resi- peatedly held that [HN8] an indictment need not allege dent over the head with an iron, threatened her with a the constituent elements of the aggravating feature which gun, threatened to [**16] kill her daughter, sexually elevates murder to capital murder. Beathard v. State, 767 assaulted her, and then burglarized the home; (2) on May S.W.2d 423, 431 (Tex. Cr. App. 1989) (need not allege 18, 1987, appellant, using a gun to threaten the employ- the constituent elements of burglary); Marquez v. State, ees, robbed a Golden Fried Chicken restaurant; (3) three 725 S.W.2d 217, 236 (Tex. Cr. App.), cert. denied, 484 days later on May 21, 1987, appellant, again using a gun, U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987) (ag- robbed a McDonald's restaurant; and (4) on January 20, gravated sexual assault); Hammett v. State, 578 S.W.2d 1988, while on probation for the previous offenses, ap- 699, 708 (Tex. Cr. App. 1979), cert. denied, 448 U.S. pellant robbed a Domino's Pizza, using a toy gun to 725, 100 S. Ct. 2905, 65 L. Ed. 2d 1086 (1980) (rob- threaten an employee. In each of these instances, appel- bery). He raises no novel argument to persuade us to lant threatened, essentially, to "blow [the victims'] brains revisit these holdings. Point of error thirteen is overruled. out" 9 if they did not cooperate with him. On November 15, 1989, in an unadjudicated offense, appellant at- By way of his twelfth point of error, appellant con- tempted to choke and sexually assault an acquaintance tends that the trial court erred in denying his request for who was nine months pregnant at the time. Appellant special venire, after having earlier granted same. Prose- threatened to kill her if she would not stop screaming. cution of this cause originated in Wichita County before The woman managed to get away. Judge Driver. Prior to change of venue to Lubbock County, Judge Driver granted appellant's motion for a 9 Specifically, in each offense, appellant stat- special [*324] venire. Article 34.01. Appellant argues ed, respectively: (1) "Do not look at me. If you that Judge Driver should not have rescinded the original look at me I'm going to kill you. I will blow your order without his permission. fucking brains out. If you look at me I will kill you"; (2) he would "blow [her] mind out"; (3) if [**19] Following the change of venue, trial com- the manager did not give him all the money, he menced on March 25, 1991. Appellant objected when would "blow [her] fucking brains out"; and (4) "If Judge Driver, who had been assigned to Lubbock County you don't hurry up and open that safe, I'm going for the duration of the case, began to select venirepersons to pop a cap on you." from the regular jury panel rather than a special venire. In overruling his objection, Judge Driver quoted Article [**17] Despite appellant's assertions, the record 34.01 which leaves the empanelment of a special venire shows he repeatedly threatened to kill others during his to the discretion of the trial court where more than 100 previous offenses and did harm his victims on more than jurors have been summoned for regular service. one occasion. It was not necessary for the State to but- tress its case on future dangerousness with psychiatric At trial, the State and appellant stipulated to the fol- testimony. Narvaiz v. State, 840 S.W.2d 415, 425 (Tex. lowing: Wichita County does not have continuous jury Cr. App. 1992), cert. denied, U.S. , 113 S. Ct. 1422, weeks. It is general practice not to summon more than 122 L. Ed. 2d 791 (1993).; Huffman v. State, 746 S.W.2d 100 jurors per week. Because of this practice, the method 212, 224 (Tex. Cr. App. 1988). Considering the record as to obtain jurors for a capital case in Wichita County is by a whole, we conclude there was sufficient evidence to a special venire procedure. In Lubbock County, a capital support the jury's affirmative finding that there was a case is generally heard by regular jurors summoned for service the week a capital case is set for trial. For the Page 9 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

week of March 25th, 625 jurors were summoned for reg- You could make that answer based ular jury service in Lubbock County. Of those sum- upon the evidence? moned, 264 appeared for service and 125 were assigned A Yes. I would have to, you know - - to the instant case. the evidence. The State also offered into evidence a letter dated March 13, 1991, from Judge William R. Shaver [**20] of Lubbock County to Judge Driver. The letter confirms But on redirect Brown again insisted that no matter how that "it is agreeable with you [Judge Driver] for us to much evidence the prosecutors could put on [**22] she handle the Central Jury Pool in the usual method; . . . ." would still automatically answer "no" to one or more of Appellant admitted to having reviewed the letter in the the special issues in order to give the defendant a second judge's chambers, although he never agreed or disagreed chance. Brown repeated her contradictory answers on with the procedure. The trial court subsequently re- subsequent recross and redirect. The trial court then scinded the previous order and overruled appellant's mo- granted the State's challenge for cause. Defense counsel tion for special venire. objected to Brown's excusal. [HN9] Because more than 100 jurors were called for [HN10] In a capital case, the State is entitled to ju- service the week of appellant's trial, the decision to grant rors who will impartially consider and decide the facts a special venire was within the discretion of the trial and conscientiously apply the [*325] law as charged court. Article 34.01. Therefore, we will defer to the trial by the court. Perillo, 758 S.W.2d at 577; Adams v. Tex- court's ruling. Id. Point of error twelve is overruled. as, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980). We agree with appellant that venireman Brown In his ninth point of error, appellant maintains that at times stated that she could set aside her personal feel- the trial court erred in sustaining the State's challenge for ings and answer the special issues based upon the evi- cause of prospective juror Brown because of her personal dence. However, she just as firmly maintained that she opinion regarding the death penalty. Specifically, he ar- would ignore the evidence no matter how great and an- gues that her testimony indicates that she could set aside swer "no" to at least one of the special issues in order to her disfavor of capital punishment and answer the special avoid the death penalty. When presented with a record issues based on the evidence presented to her. such as this, we must afford great deference to the trial Brown is the quintessential "vacillating venireman." court's discretion in deciding whether a venireman Perillo v. State, 758 S.W.2d 567, 576 n.10 (Tex. [**21] should be excused on the basis of an inability to follow Cr. App. 1988), cert. denied, 492 U.S. 925, 109 S. Ct. the law. Article 37.071; Perillo, 758 S.W.2d at 577. Alt- 3263, 106 L. Ed. 2d 608 (1989). During voir dire, after hough [**23] some of Brown's answers indicated that the State explained the function of the special issues she could answer the special issues in accordance with during the punishment phase, see Article 37.071, Brown the evidence, the record contains sufficient testimony to stated that she could not answer the special issues "yes" the contrary to hold that the trial court could reasonably knowing that the death penalty would be imposed. She have found that her testimony as a whole indicated that further stated that she would answer "no" to avoid the she would not have been able to perform her duties as a result even if the evidence supporting a "yes" answer was juror. Perillo, 758 S.W.2d at 577; Wainwright v. Witt, overwhelming. The State then challenged Brown for 469 U.S. 412, 420, 105 S. Ct. 844, 83 L. Ed. 2d 841 cause. (1985). 11 Since there is sufficient support in the record, we hold that the trial court did not err in granting the On cross voir dire, Brown continued to reiterate her State's challenge for cause. Appellant's ninth point of opposition to the death penalty. However, after appealing error is overruled. to her sense of duty as a juror, defense counsel was able to elicit the following: 11 Compare Riley v. State, S.W.2d ( No. 69,738, (Tex. Cr. App., delivered November BY [DEFENSE COUNSEL]: 10, 1993) (1993 Tex. Crim. App. LEXIS 178, Q That once you heard the evidence, *10-*11) (venireman did not at any time state that, you know, you felt very strongly that that he would not follow the law). Question Number one should be answered By way of point of error ten, appellant complains "Yes," Question Two should be answered that the trial court erred in allowing the State to use a "Yes," and if it was appropriate and sub- peremptory challenge against prospective juror [**24] mitted Question Three answered the Green because of her views on the death penalty. Appel- same. lant contends that it is a violation of his Sixth and Four- teenth Amendment rights under the United States Con- Page 10 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

stitution for the State to utilize a peremptory strike to outweighed by the danger of unfair prejudice, confusion exclude a prospective juror who is not in favor of the of the issues, or misleading the jury, or by considerations death penalty. 12 We disagree. of undue delay, or needless presentation of cumulative evidence. Rule 403, supra; Long, 823 S.W.2d at 271, 12 Appellant relies on Brown v. Rice, 693 F. citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Supp. 381 (W.D.N.C. 1988), to support his argu- Cr. App. 1991) (Opinion on Rehearing). ment. Brown has since been reversed in part by [HN13] A court may consider many factors in de- Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989), termining whether the probative value of evidence is cert. denied, 495 U.S. 953, 110 S. Ct. 2220, 109 substantially outweighed by the [**27] danger of unfair L. Ed. 2d 545 (1990). prejudice. These factors include: the number of exhibits [HN11] Article 35.14 provides a vehicle with offered, their gruesomeness, their detail, their size, which to exclude potential jurors that an advocate be- whether they are in color or black and white, whether lieves are prejudiced against his cause. These peremptory they are close-up, and whether the body depicted is challenges may be made for any reason so long as they clothed or naked. Long, 823 S.W.2d at 272. A court, are not exercised in a racially discriminatory manner. however, should not be limited by this list. The availabil- Article 35.261; Batson v. Kentucky, 476 U.S. 79, 106 S. ity of other means of proof and the circumstances unique Ct. 1712, 90 L. Ed. 2d 69 (1986). [HN12] Subject to the to each individual case should also be considered. constraints of Article 35.261, we have held that a party Appellant does not explain why he believes the need not assign [**25] a reason for exercising his per- photographs were inflammatory except to note that they emptory strikes, even where the discernable purpose of "were especially gruesome in their detailed and vivid the strike is to exclude a prospective juror who is not in depiction of the murder scene and Ms. Bass's subsequent favor of the death penalty. Hernandez v. State, 819 autopsy." State's exhibits 37 and 38 are 8" X 10" color S.W.2d 806, 818 (Tex. Cr. App. 1991), cert. denied, photographs of decedent as she appeared at the scene of U.S. , 112 S. Ct. 2944, 119 L. Ed. 2d 568 (1992); May the crime. State's exhibit 37 is a close-up of decedent's v. State, 738 S.W.2d 261, 267-68 (Tex. Cr. App.), cert. shirt-wrapped head and depicts the injury to her eye. denied, 484 U.S. 872, 108 S. Ct. 206, 98 L. Ed. 2d 158 State's exhibit 38 shows the upper-portion of decedent, (1987). We overrule appellant's tenth point of error. laying face down. The photo shows the impression In his second point of error, appellant complains wounds in her left shoulder and the direction the blood about the admission of six photographs depicting Bass as flowed from the initial head injuries. Although the pho- she appeared at the crime scene and her wounds as tographs are gruesome and detailed, they are not en- viewed at the autopsy. Appellant specifically complains hanced in any way and portray no more [**28] than the the probative value of State's Exhibits 37, 38, 39, 68, 69, injuries inflicted. See Narvaiz, 840 S.W.2d at 429. The and 70 is greatly outweighed by their prejudicial effect. trial court did not err in admitting these photographs. At trial, appellant objected to the admission of State's exhibits 68, 69, and 70 are 8" X 12" color State's exhibit 39 only on the basis of repetition. Since photographs of decedent at the coroner's office. State's his trial objection does not comport with the issue raised exhibit 68 shows Bass nude and face down on the exam- on appeal, he has preserved nothing for our review. ining table. The body has been cleaned of the dried Thomas v. State, 723 S.W.2d 696, 700 (Tex. Cr. App. blood. The exhibit gives an overall view of the various 1986); Johnson, 803 S.W.2d at 293. Therefore, we will injuries Bass received prior to the gunshot. State's exhibit address appellant's argument [**26] only as to the re- 69 is a close-up of the head injuries. Bass' hair has been maining five exhibits. Appellant does not challenge the shaved from around the injuries in order to depict their relevancy of these exhibits. shape. The exhibit was used during trial to show the semi-circular injury that was believed to have been Appellant cites Burdine v. State, 719 S.W.2d 309, caused by the lamp upon which appellant's fingerprint 316 (Tex. Cr. App. 1986), cert. denied, 480 U.S. 940, 107 was found. State's exhibit 70 is the only photo of the stab S. Ct. 1590, 94 L. Ed. 2d 779 (1987), to argue that the wound to Bass' neck. photographs were submitted by the State purely to "in- flame the passion of the jury." The Texas Rules of It is doubtful the State's case would have been ren- Criminal Evidence, however, have since modified Bur- dered significantly less persuasive without the introduc- dine. See Tex. R. Cr. Evid. 401, 402, and 403; see also tion of these photographs. Testimony was presented at Long v. State, 823 S.W.2d 259, 271 (Tex. Cr. App. 1991), trial regarding the cause of death and the effect of the [*326] cert. denied, U.S. , 112 S. Ct. 3042, 120 L. blows to decedent. However, the photographs "are not, in Ed. 2d 910 (1992). Our review is limited to determining our estimation, so horrifying or appalling that a juror of whether the probative value of the photos is substantially normal sensitivity would necessarily encounter difficulty Page 11 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

[**29] rationally deciding the critical issues of this case The State's line of questioning immediately prior to after viewing them." Fuller v. State, 829 S.W.2d 191, 206 Wilson's statement was referring to the location of evi- (Tex. Cr. App. 1992), cert. denied, U.S. , 113 S. Ct. dentiary items prior to the offense. Appellant [**31] 2418, 124 L. Ed. 2d 640 (1993). Further, as regards the argues that Wilson's statement about "what had been nudity in State's exhibit 68, the photo is not so vulgar or taking place in Wichita Falls" would naturally lead the indecent as to draw attention away from the wounds that jury to believe that other criminal activity similar to facts are the focus of the exhibit. in this case had been happening in the area and that ap- pellant was responsible for those episodes too. However, We are not persuaded that the danger of unfair prej- Wilson's statement was general and did not refer to ap- udice substantially outweighed the probative value of the pellant in any way. Viewing the nonresponsive answer in above photographs. Therefore, we hold that the trial context, we find that neither the question nor Wilson's court committed no error in admitting the exhibits. Point response was "clearly calculated to inflame the minds of of error two is overruled. the jury." Waldo, 746 S.W.2d at 752. We hold that the In his third point of error, appellant argues that the trial court's instruction to disregard cured any error. The trial court erred in not granting a mistrial after a nonre- point of error is overruled. sponsive answer was given by a witness. Appellant refers In his first point of error, appellant asserts that the to a portion of witness Wilson's testimony where he trial court erred in admitting the fruits of a search carried stated he told Bass to keep a gun by her bed "because of out pursuant to an invalid search warrant. Specifically, what had been taking place in Wichita Falls." Appellant he argues that because the attached appendices to the alleges that this statement was so inflammatory and search warrant affidavit were not incorporated by refer- prejudicial that the trial court's instruction to the jury to ence into the body of the affidavit, the search warrant disregard was insufficient, and that his request for a mis- was not supported by probable cause. Appellant con- trial should have been granted. cedes that if the appendices were incorporated, the search [HN14] Error in admitting [**30] improper testi- warrant would probably be valid. mony may be corrected by a withdrawal and an instruc- The search warrant incorporates the affidavit by ref- tion to disregard unless it appears the evidence is clearly erence. Attached [**32] to the sworn-to and signed calculated to inflame [*327] the minds of the jury and affidavit are appendices A and B. Each appendix is enti- is of such character as to suggest the impossibility of tled "Affidavit for evidence search warrant." Neither withdrawing the impression produced on their minds. appendix is itself signed or individually sworn to. Nor Waldo v. State, 746 S.W.2d 750, 752 (Tex. Cr. App. does the affidavit expressly incorporate the appendices 1988). Here the arguable testimony occurred as follows: by reference. BY [PROSECUTION]: [HN15] Generally, incorporating the appendices to an affidavit by reference would be preferred. It does not Q OK. I think I just have one last area of invariably follow that absent such an incorporation the questioning, Mr. Wilson. affidavit must fail. Cf. U.S. v. Beaumont, 972 F.2d 553, 561 (5th Cir. 1992), cert. denied, Beaumont v. U.S., With regard to the revolver, the U.S. , 113 S. Ct. 1953, 123 L. Ed. 2d 657 (1993) (a .32-caliber, did you make any suggestion warrant does not necessarily fail absent incorporation by to Mrs. Bass as to where to keep that reference of the affidavit); see also Commonwealth v. weapon? Truax, 397 Mass. 174, 490 N.E.2d 425, 431 (1986) (af- A Yes, I did sir. fidavit valid even though pages attached to warrant were not signed or sworn to). The Supreme Court has cau- Q And where did you suggest or tioned that "[HN16] affidavits for search warrants . . . recommend that she keep the weapon? must be tested and interpreted by magistrates and courts A Well, sir, I recommended to her to in a common sense and realistic fashion." U. S. v. Ven- keep it on the stand near her bed there, tresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 because of what had been taking place in (1965). Wichita Falls. There was testimony elicited at a motion to suppress hearing conducted during trial [**33] that the issuing magistrate essentially considered the attached appendices When appellant objected, the trial court sustained the as part and parcel of the warrant affidavit. The appen- objection and instructed the jury to disregard the state- dices are physically attached to the affidavit, and the ment. Appellant then moved for mistrial, but his request matter contained therein is an obvious continuation of was denied. Page 12 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

that paragraph of the affidavit setting forth the basis for cation of Geesa to cases tried after it was handed down, probable cause. The magistrate even suggested a handful and we do not address that question here. 14 He contends of changes to appendix A before he signed the warrant. only that because he preserved error, he should be ex- These changes were made by hand and initialed by both cepted from the prospective-only rule. But to hold that a the magistrate and the affiant. 13 Under these unusual change in the law will have only a prospective applica- circumstances it is apparent that the magistrate consid- tion is essentially to hold that there was no error previ- ered the affiant's oath to extend not [*328] only to ously to preserve. Points of error six and seven are over- matters contained on the face of the affidavit page, but ruled. also to the information contained in the attached appen- dices. The trial court could reasonably have concluded 14 This Court has seen a number of arguments that the appendices were implicitly incorporated within in recent months that our prospective-only hold- the affidavit. Appellant's first point of error is overruled. ing in Geesa was in error, under the rationale of Harper v. Virginia Department of Taxation, 509 13 At the suppress ion hearing appellant ar- U.S. , 113 S. Ct. 2510, 125 L. Ed. 2d 74 gued the magistrate thus abandoned his detached (1993). Appellant makes no such argument here, and neutral status. He does not reiterate this ar- however, and in fact cites only Geesa itself in gument, however, on appeal. support of this point of error. [**34] In his sixth and seventh points of error, [**36] Punishment Phase appellant contends that the trial court erred by denying his requested jury instruction on "reasonable doubt" in In appellant's fifteenth point of error, he contends both the guilt/innocence and punishment phases of trial. that the trial court erred in permitting three punish- He argues that because he requested an instruction simi- ment-phase witnesses to testify because their names were lar to the one required in Geesa v. State, supra, the hold- not on the State's witness lists. On appeal, he further ob- ing in that case should be given retroactive application to jects that the testimony resulted in surprise. his case. During both phases of trial, appellant requested [HN18] If a witness' name is not furnished a de- the following definition: fendant before trial despite a court order, any error in allowing that witness to testify over a claim of surprise is A reasonable doubt is based upon rea- "made harmless" by defendant's failure to object or move son and common sense, and not the mere for a continuance. Youens v. State, 742 S.W.2d 855, 860 possibility of guilt. A reasonable doubt is (Tex. App. - Beaumont 1987, pet. ref'd), citing Hubbard the kind of doubt that would make a rea- v. State, 496 S.W.2d 924, 926 (Tex. Cr. App. 1973). In sonable person hesitate to act. Proof be- the instant case, appellant objected 15 but failed to move yond a reasonable doubt, therefore, must for a continuance in order to interview the witnesses or be proof of such convincing character that determine the matters about which they were to testify. a reasonable person would not hesitate to Having failed to do so, he "cannot now be heard to com- act and rely on it. plain." Hubbard v. State, supra. We overrule appellant's fifteenth point of error. Appellant now argues that because his definition essen- 15 Appellant did not object on the basis of tially tracks the one required by Geesa, 820 S.W.2d at surprise during trial. Therefore, nothing was pre- 162, and because he preserved error by requesting the served for review on that point. See Thomas, 723 definition, that Geesa should; be applied retroactively to S.W.2d at 700. his case. [**37] In point of error fourteen, appellant com- We find appellant's argument unpersuasive. At the plains that the trial court erred in allowing extraneous time appellant was tried, it was not a requirement that the documents to be admitted as part of appellant's pen trial court define [**35] "reasonable doubt." Goss v. packet. During the punishment phase of trial, appellant's State, 826 S.W.2d 162, 169 (Tex. Cr. App. 1992), cert. pen packet was admitted into evidence. Included in the denied, U.S. , 113 S. Ct. 3035, 125 L. Ed. 2d 722 packet was a motion to revoke probation, [*329] an (1993); McGinty v. State, 723 S.W.2d 719, 720-21 (Tex. order issuing an arrest warrant, and an arrest warrant for Cr. App. 1986). [HN17] Although we have subsequently cause numbers 24,599-C and 24,371-C. Appellant con- held that a definitional instruction of the term is required, tends that these documents contain "extraneous hearsay we declared in Geesa that this holding would be applied material" and the "jury could interpret these documents prospectively only. Geesa, supra, at 165; Goss, supra, to be a comment on the weight of the evidence by the at 169. Appellant does not argue we erred to limit appli- court in the jury's mind." We disagree. Page 13 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

We address first that part of appellant's multifarious commonly referred to as the Penry instruction. See Penry argument that the motion to revoke, the order, and the v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d warrant were "extraneous." [HN19] The trial court may 256 (1989). Specifically, he complains that the trial court admit any evidence it deems relevant to sentencing at the did not place the burden of proof on the State to negate punishment phase of a capital murder trial. Felder v. the mitigating circumstances. State, 848 S.W.2d 85, 98 (Tex. Cr. App. 1992), cert. de- nied, U.S. , 114 S. Ct. 95, 126 L. Ed. 2d 62 (1993). 16 The jury was instructed, in part: Appellant argues that the above documents were not necessary or required in order to prove the prior convic- When you deliberate on the tions because the indictments, judgments, and sentences questions posed in the special is- [**38] were all admissible for that purpose. Appellant sues, you are to consider mitigat- overlooks, however, that the trial court may have deemed ing circumstances, if any, sup- them relevant to one of the special issues. [HN20] That ported by the evidence presented appellant committed another crime while already on in both phases of the trial, whether probation for other offenses has a bearing on the question presented by the state or the de- of whether he would pose a future danger to society. fendant. Article 37.071(b)(2). It was within the trial court's dis- **** cretion to determine if the documents had relevance to either of the special issues. [HN21] Absent a clear abuse If you find that there are mit- of discretion, the trial court's ruling will not be disturbed. igating circumstances in this case, Id. you must decide how much weight they deserve, if any, and thereaf- As for appellant's contention that the motion to re- ter, give effect answering the issue voke, the order issuing the arrest warrant, and the war- under consideration. If you deter- rant itself were all hearsay, we note that appellant did not mine, when giving effect to the object specifically that these documents were hearsay. mitigating evidence, if any, that Instead he made what he himself characterized at trial as the appropriate punishment for the a "general" objection that the entire pen packet was defendant, based on his back- hearsay. In Jones v. State, 843 S.W.2d 487, at 492 ground, character or the circum- (Tex.Cr.App. 1992), we opined: stances of this case, should be a life sentence rather than a death [HN22] The trial court need never sort sentence, you are instructed to through challenged evidence in order to answer "no" to at least one of the segregate the admissible from the ex- special issues. cludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence [**39] is of- Whether this is an adequate Penry instruction is fered and challenged which contains some not before us. See, however, Rios v. State, 846 of each, the trial court may safely admit it S.W.2d 310, 316 (Tex. Cr. App. 1992), cert. de- all or exclude it all, and the losing party, nied, U.S. , 113 S. Ct. 1946, 123 L. Ed. 2d no matter who he is, will be made to suf- 651 (1993). fer on appeal the consequences of his in- sufficiently specific offer or objection. [**40] [HN24] In instances where mitigating evi- dence is presented, all that is constitutionally required is a vehicle by which the jury is able to consider and give Appellant does not now contend that the entire pen pack- effect to the mitigating evidence relevant to a defendant's et was hearsay. [HN23] The trial court was not required, background, character, or the circumstances of the crime. in the face of a global hearsay objection, to cull through Penry, 492 U.S. at 329; Johnson v. Texas, 509 U.S. , the pen packet and exclude whatever particular matters [*330] 113 S. Ct. 2658, 2667, 125 L. Ed. 2d 290 (1993) he may find there that meet that description. See Tex. R. In Texas, this vehicle commonly takes the form of a jury Cr. Evid. 103(a)(1). Appellant's fourteenth point of error nullification instruction, as in the instant case, or a fourth is overruled. special issue. See Fuller, 829 S.W.2d at 209 (jury nulli- fication charge), State v. McPherson, 851 S.W.2d 846, Finally, in his eleventh point of error appellant con- 847-50 (Tex. Cr. App. 1992) (fourth special issue). tends the trial court erred in its instruction during the punishment phase regarding mitigating evidence, 16 Page 14 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **

Neither this Court nor the Texas legislature has ever decide whether mitigating circumstances never- assigned a burden of proof on the issue of mitigating theless warrant a life sentence. However, neither evidence. See Article 37.071. 17 The Eighth and Four- Subsection (c) nor Subsection (e) itself expressly teenth Amendments do not require that a burden be assigns a particular burden of proof on the issue placed on the State. In a plurality opinion, the United of mitigation. It might be argued, although we States Supreme Court in Walton v. Arizona affirmatively certainly have no occasion here to hold, that declined to "adopt as a constitutional imperative a rule Subsection (c) implicitly assigns the burden of that would require the court to consider the mitigating proof to the beneficiary of a finding of "sufficient circumstances claimed by a defendant unless the State mitigating . . . circumstances to warrant that a negated [**41] them by a preponderance of the evi- sentence of life . . . be imposed." Cf. Arnold v. dence." 497 U.S. 639, at 650, 110 S. Ct. 3047, at 3055, State, 786 S.W.2d 295, at 298 (Tex. Cr. App. 111 L. Ed. 2d 511, at 526 (1990) (plurality opinion). The 1990) (State has burden of proof to establish plurality in Walton further held that [HN25] it is not un- harmless error under Tex. R. App. P. 81(b)(2), as constitutional to place a burden on the defendant to es- beneficiary of the error). That, of course, would tablish sufficient mitigating circumstances by a prepon- be the defendant. But at the time of appellant's derance of the evidence. Id. U.S. at 649-651, S.Ct. at trial there was no statutory authority for a Penry 3055-56, L. Ed. 2d at 525-27. Because [HN26] neither instruction of any kind, much less a legislative legislation nor constitution places a burden of proof upon assignment of burden of proof, either express or the State to negate the existence of mitigating evidence, implied. we refuse to fault the trial court for failing to give the [**42] Finding no reversible error, we affirm the jury such an instruction. Therefore, appellant's eleventh judgment of the trial court. point of error is overruled. PER CURIAM 17 Currently, Article 37.071 mandates that a jury that finds beyond a reasonable doubt, as re- (Delivered: February 9, 1994) quired by Subsection (c), that the special issues EN BANC under Subsection (b) should be answered affirm- atively must go on pursuant to Subsection (e) to McCormick, P.J. and Baird, J. Page 1

LEVIYAS JAMAIL CLAYTON, Appellant v. THE STATE OF TEXAS

NO. PD-1311-05

235 S.W.3d 772; 2007 Tex. Crim. App. LEXIS 1385

October 10, 2007, Delivered

NOTICE: PUBLISH properly consider the combined and cumulative force of the evidence and view the evidence in the light most fa- SUBSEQUENT HISTORY: On remand at Clayton v. vorable to the jury's guilty verdict. The argument that State, 2008 Tex. App. LEXIS 4098 (Tex. App. Corpus there were more bloody prints than were justified by Christi, June 5, 2008) defendant's explanation supported an inference that he was lying and provided incremental circumstantial evi- PRIOR HISTORY: [**1] dence that he was the shooter. Other incriminating cir- ON STATE'S PETITION FOR DISCRETIONARY cumstances included defendant's flight, his failure to REVIEW FROM THE THIRTEENTH COURT OF report the shooting to animal-control officers who were APPEALS HARRIS COUNTY. near the scene, his failure to turn himself into police on Clayton v. State, 169 S.W.3d 254, 2005 Tex. App. LEXIS an arrest warrant, and the timing of events, which sup- 3439 (Tex. App. Corpus Christi, 2005) ported an inference that defendant was with the victim at the time of the shooting. CASE SUMMARY: OUTCOME: The court reversed the judgment of the court of appeals and remanded the case to that court for PROCEDURAL POSTURE: A jury found defendant consideration of defendant's factual sufficiency claim. guilty of murder under Tex. Penal Code. Ann. § 19.02(b) (1994). The Thirteenth Court of Appeals Harris County, LexisNexis(R) Headnotes Texas, reversed and entered a judgment of acquittal, holding that the evidence was legally insufficient to support the jury's verdict. The court granted further re- view. Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview OVERVIEW: Defendant testified that he discovered the Evidence > Procedural Considerations > Circumstan- victim in the backseat of a car covered in blood and that tial & Direct Evidence he left after trying and failing to move the car. In finding [HN1] When the Texas Court of Criminal Appeals re- the evidence legally insufficient, the court of appeals views a court of appeals's application of the Jackson le- reasoned in part that defendant's bloody fingerprints were gal sufficiency standard, the relevant question is whether, not evidence that he was with the victim before the after viewing the evidence in the light most favorable to shooting. On further review, the court held that the court the prosecution, any rational trier of fact could have of appeals incorrectly applied the Jackson standard when found the essential elements of the crime beyond a rea- considering the circumstantial evidence by failing to sonable doubt. This standard accounts for the factfinder's Page 2 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

duty to resolve conflicts in the testimony, to weigh the County, Texas. Her partner, who was following behind evidence, and to draw reasonable inferences from basic her in another car, also stopped. Approximately ten to facts to ultimate facts. Therefore, in analyzing legal suf- twenty minutes after the truck veered off the road, Davis ficiency, the court determines whether the necessary in- looked into the park and noticed something moving. She ferences are reasonable based upon the combined and went to investigate and discovered James Playonero, cumulative force of all the evidence when viewed in the covered in blood and suffering from several gunshot light most favorable to the verdict. The court's review of wounds. Davis called the police for help. Although all of the evidence includes evidence that was properly Playonero attempted [**2] to speak to Davis, she could and improperly admitted. When the record supports con- not understand what he was saying because he was flicting inferences, the court presumes that the factfinder mumbling. Playonero died before the ambulance ar- resolved the conflicts in favor of the prosecution and rived--approximately ten minutes after he was discov- therefore defers to that determination. Direct and cir- ered. According to Davis, between the time she stopped cumstantial evidence are treated equally: Circumstantial to assist the driver of the truck that veered off the road evidence is as probative as direct evidence in establish- and the time she went to investigate the movement in the ing the guilt of an actor, and circumstantial evidence park, she did not hear any gunshots or see any other peo- alone can be sufficient to establish guilt. ple or vehicles. Davis discovered Playonero near a 1995 Toyota Av- alon, which Playonero had borrowed from a friend Criminal Law & Procedure > Criminal Offenses > named Angel Ayala earlier that morning. The car ap- Miscellaneous Offenses > Fleeing & Eluding > Con- peared to have rolled into a tree and was stuck in the sciousness of Guilt mud. The gear-shift was in neutral, and the ignition was Evidence > Procedural Considerations > Circumstan- in the accessory position. Police suspected that a tire iron tial & Direct Evidence found in the front seat of the car had been wedged [HN2] A factfinder may draw an inference of guilt from against the accelerator so the car could propel itself into the circumstance of flight. the trees. Based on the discovery of a wad of burned pa- per lodged in the gas manifold, police also concluded COUNSEL: For APPELLANT: Kurt B. Wentz, Hou- that someone had tried to set the car on fire by igniting ston, TX. the gas tank. For STATE: Bridget Holloway, ASSISTANT DIS- An assistant medical examiner with the Harris TRICT ATTORNEY, Houston, TX. County Medical Examiner's Office testified that Play- onero was shot at close range and that Playonero died JUDGES: KEASLER, J., delivered the opinion of the within five to ten [**3] minutes after suffering the Court in which KELLER, PRICE, WOMACK, JOHN- wounds. He also stated that, based on his training and SON, HERVEY, HOLCOMB, and COCHRAN, JJ., experience, there was no possible way that Playonero joined. MEYERS, J., did not participate. could have lived for twenty [*775] to thirty minutes after receiving those wounds. OPINION BY: KEASLER The evidence at trial showed that there was a signif- icant amount of blood inside the car and a moderate OPINION amount on the outside of the car. A latent-fingerprint [*774] A jury found Leviyas Jamail Clayton examiner with the Houston Police Department testified guilty of the murder of James Playonero. The Thirteenth that he identified prints belonging to Playonero, Ayala, Court of Appeals held that the evidence was legally in- and Clayton. He testified that he identified three sets of sufficient to support the jury's verdict. 1 We disagree and prints, stamped in blood--one on the middle console, one reverse the judgment of the court of appeals. on the gear shift, and one on the steering wheel. These prints belonged to Clayton. The prints identified as be- 1 Clayton v. State, 169 S.W.3d 254, 255 (Tex. longing to Playonero and Ayala were not bloody. App.-Corpus Christi 2005). Sergeant Boyd Smith, one of the first homicide of- ficers on the scene, testified that there were no witnesses Facts at the park who saw Playonero get shot. Although bullet On June 14, 2001, Angela Davis, an employee with fragments were discovered in the car, there were no bul- City of Houston Animal Control, stopped to render as- let holes inside the car. Sergeant Smith believed that sistance when the truck in front of her veered off the road Playonero was shot both in and outside the car and that into a ditch near the entrance to Brock Park in Harris the shooting did not take place in the park because there Page 3 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

were no shell-casings found outside the car. He suspect- They didn't execute him. An execu- ed [**4] that Playonero's murder involved a drug deal tion is a gunshot wound to the head and when he learned that Ayala and Playonero were Colum- that's it. This guy was hurt. bian and because of the nature of Playonero's gunshot ... wounds. Referring to the wounds, Sergeant Smith stated: Not one of the wounds was a The fact that he was shot in both legs, life-threatening injury. It's possible that twice in both legs, once in the forearm, the final or finishing touch to the back of once through and through in the flesh and the [*776] neck was going to be the ul- the stomach, shot in the penis, shot in the timate, but whoever [**6] shot him in middle of the back of the neck, they were the back of the neck messed that up too. torturing him or trying to get information or getting information from something over a bad drug deal. Finally, offering another factor that supported his theory, Officer Sosa pointed to the car, noting that it had been covered in blood. Jesus Sosa, an officer with the Homicide Division, Officer Sosa also testified that he eliminated Ayala was assigned to investigate Playonero's death. Clayton as a suspect when he interviewed Ayala to determine his became the focus of his investigation based on the print involvement. Ayala told Officer Sosa that he was at identification. After Officer Sosa obtained an arrest war- home alone when Playonero was shot. rant for Clayton in mid-July, he first attempted to find Clayton at his grandmother's house, which was located The police never recovered a firearm linked to the three to four miles from Brock Park. He also tried to lo- shooting. cate Clayton at his girlfriend's apartment and the homes Clayton was the only defense witness. He testified of various relatives. Despite Officer Sosa's efforts, Clay- that he went to the park on June 14th about a quarter ton was not arrested until he was stopped for a traffic before noon to meet a woman he had met at a nightclub violation in March 2002, some eight months later. two weeks earlier. Immediately before he entered the Explaining what his investigation revealed, Officer park, he saw a blue car exiting at a high rate of speed. He Sosa testified that he did [**5] not speak with any wit- did not see any other cars in the park when he first ar- nesses who saw Clayton in the park on June 14th or who rived. But when he was half-way into the park, he no- witnessed Clayton shoot Playonero. He also testified that ticed a white Avalon wrecked in front of a tree with the he did not interview any witnesses who could connect engine running and the rear passenger's door open. Clayton to Playonero. Clayton got out of his car and walked toward the car. He saw Playonero lying in the backseat covered in blood. Concurring with Sergeant Smith's opinion about With both hands, Clayton grasped Playonero's left hand why Playonero had been murdered, Officer Sosa testified for a few seconds and, in response, Playonero began to that, based on his investigation, he believed that Play- mumble but Clayton did not understand what he was onero was conducting a drug transaction in the park and [**7] saying. Clayton then got in the driver's seat, sat on that the deal had "gone bad." During his investigation, the tire iron, and "tried to put the car in reverse, but the Officer Sosa verified his initial suspicions about Play- gravel around the car was - - where the ground was wet onero's involvement with drugs. He stated that Play- and the mud was, the car wouldn't move." Although he onero's wife told him that Playonero was involved in the tried to move the car two times, the tires just spun. Dur- drug business and that he would disappear for several ing direct examination by his attorney, Clayton stated days at a time and return with money. In furtherance of that he did not remember touching the console of the car his theory, Officer Sosa also referred to Playonero's but that he did remember touching the gear-shift handle wounds: and the steering wheel. According to Clayton, the gear-shift was in the drive position before he moved it, The way he was shot, the manner in and when the car would not move, he put the gear-shift which he was shot, the wounds he re- in neutral and turned the engine off. Clayton then saw a ceived, to me somebody wanted to hurt truck veer off the road outside of the park; he panicked, him. got in his car, and left the park. As he left the park, he saw two animal control trucks parked behind the truck ... that veered off the road across the street. Clayton then headed to the house that he shared with his grandmother. Page 4 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

On cross-examination, the prosecutor challenged Q. And the man's still alive as you're Clayton's testimony about his attempts to move the Ava- leaving, right? lon out of the mud: A. Yes, [**9] sir. Q [Prosecutor]. [Y]ou got the car in Q. And you can tell that it's serious reverse. You're spinning the tires in the life-threatening injuries, correct? mud, and no mud gets thrown on that front fender; [**8] is that correct? You A. Yes, sir. saw the picture. There's no mud on it? Q. And those animal control officers A [Clayton]. There's no mud on that are right there. Can you help me? You car in the picture. don't go up to them?

Q. Now I want you to look at this ... picture again. You notice on this front tire A. Sir, I was scared. I just left. that the mud is only half way kind of, al- most half moon shape on the tire? Q. You were scared of the animal control officers? A. Yes, sir. A. I was scared when I heard the Q. And you said that when you first truck flip over. I didn't know what was walked up to this car, it was stuck down going on, sir. in the mud, right? It was stuck? A. Yes, sir. Q. What we're looking at here, if And when the prosecutor questioned him about that's the mud line, where the car was whether he called 911 when he got home, Clayton ad- stuck in the mud on that tire. mitted that he did not call and stated that he went to his room, sat on his bed for a while thinking about what he Defense Counsel: Judge, I object. had seen, and cried for a few minutes. Although Clayton He's asking him to speculate again. testified that he often confided in his grandmother, he stated the he did not tell her about what he had seen even Prosecutor: He's there, Judge, he though she was there when he came home. Finally, when should know. asked by the prosecutor if any of his family members ... told him that the police had a warrant for his arrest, Clayton stated that he did not know about the warrant Court: All right. You give me a until he was arrested during the traffic stop in March. chance to rule. He can answer it if he knows. Procedural History Q [Prosecutor]. You see what I'm The jury convicted Clayton of murder 2 and sen- talking about right here, all the mud caked tenced him to thirty years' imprisonment. Clayton ap- on the tire right there? pealed his conviction, claiming "that the evidence was A. Yes, sir. legally and factually [**10] insufficient to prove he committed murder." 3 Without addressing Clayton's fac- [*777] Q. That's the mud from tual sufficiency claim, the Thirteenth Court of Appeals where the car was stuck in the mud, right? held that the evidence was legally insufficient, reversed A. Yes, sir. the trial court's judgment, and entered a judgment of ac- quittal. 4

The prosecutor also questioned Clayton about why he 2 TEX. PENAL CODE. ANN. § 19.02(b) left the park without telling either of the animal control (Vernon 1994). officers about Playonero: 3 Clayton, 169 S.W.3d at 255. Q [Prosecutor]. You'd have to agree it's 4 Id. a pretty heinous crime, a pretty bad crime, Considering Clayton's bloody prints first, the court right? of appeals stated that the bloody prints "are not evidence A [Clayton]. Yes, sir. that [Clayton] was with the victim before the shooting, Page 5 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

and an inference to that effect can be reached only by mulative force of all the evidence when viewed in the first assuming that appellant was the perpetrator of the light most favorable to the verdict." 13 Our review of "all murder and then working backwards." 5 The court con- of the evidence" includes evidence that was properly and cluded that the prints only proved that Clayton was at the improperly admitted. 14 When the record supports con- crime scene after Playonero was shot and that Clayton's flicting inferences, we presume that the factfinder re- presence after the murder is not enough to prove guilt. 6 solved the conflicts in favor of the prosecution and therefore defer to that determination. 15 Direct and cir- 5 Id. at 258. cumstantial evidence are treated equally: "Circumstantial 6 Id. (citing Solomon v. State, 49 S.W.3d 356, evidence is as probative as direct evidence in establish- 361 (Tex. Crim. App. 2001); Medina v. State, 7 ing the guilt of an actor, and circumstantial evidence S.W.3d 633, 641 (Tex. Crim. App. 1999); Miles v. alone can be sufficient to establish guilt." 16 State, 918 S.W.2d 511, 515 (Tex. Crim. App. 1996)). 10 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Next, the court noted that an individual's failure to 11 Id. at 319 (emphasis [**13] in original). notify law-enforcement officials about a crime is not 12 Id. enough to prove guilt. 7 The court then focused [**11] 13 Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. on proof of motive. While observing that motive is Crim. App. 2007). [*778] not an element of murder, the court stated that 14 Conner v. State, 67 S.W.3d 192, 197 (Tex. "when identity is called into question, as it is here, proof Crim. App. 2001). of motive might be the glue that holds the entire case 15 Jackson, 443 U.S. at 326. together." 8 The court pointed to the absence of any evi- 16 Hooper, 214 S.W.3d at 13. dence connecting Clayton to Playonero and then deter- mined that drug-deal-gone-bad theory was unreliable, After a thorough review of the record and the opin- stating, "Such strained speculation is far too weak and ion below, we hold that the court of appeals incorrectly attenuated a connection to prove a motive sufficient to applied the Jackson standard when considering the cir- establish beyond a reasonable doubt [Clayton's] identity cumstantial evidence supporting Clayton's conviction. as the murderer." 9 The court failed to properly consider the combined and cumulative force of the evidence and view the evidence 7 Id. (citing Medina, 7 S.W.3d at 641). in the light most favorable to the jury's guilty verdict. 8 Id. (citing Guevara v. State, 152 S.W.3d 45, The court did not consider all of the evidence in its suffi- 50 (Tex. Crim. App. 2004); King v. State, 29 ciency analysis and, in conducting its cursory review of S.W.3d 556, 565 (Tex. Crim. App. 2000)). the evidence, the court improperly used a di- 9 Id. vide-and-conquer approach, systematically isolating and then discounting the evidence supporting Clayton's con- We granted review to determine whether the Thir- viction. Giving proper deference to the jury's verdict, teenth Court of Appeals erred in its legal sufficiency [*779] we find the evidence legally sufficient to sustain analysis and erred in holding that the evidence was le- Clayton's conviction. gally insufficient to support Clayton's murder conviction. We conclude that it did and remand this case to the court The jury was presented with two conflicting theo- of appeals for consideration of Clayton's factual suffi- ries--the State's and Clayton's. The jury was able to as- ciency claim. sess the credibility and demeanor of the witnesses who testified at trial. And most importantly, the jury was able Law and Analysis to assess [**14] Clayton's credibility and demeanor when he explained the presence of his bloody prints in [HN1] When we review a court of appeals's applica- the Avalon. From the guilty verdict, it is clear that the tion of the legal sufficiency standard set out in Jackson v. jury rejected Clayton's exculpatory explanation. With [**12] Virginia, 10 "the relevant question is whether, after these things in mind, we consider the evidence in the viewing the evidence in the light most favorable to the light most favorable to the verdict. prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable We begin with Clayton's bloody prints. When evalu- doubt." 11 This standard accounts for the factfinder's duty ating the legal sufficiency in burglary cases, we have "to resolve conflicts in the testimony, to weigh the evi- said that "the fingerprints of an accused, which neces- dence, and to draw reasonable inferences from basic sarily must have been made at the time of the burglary, facts to ultimate facts." 12 Therefore, in analyzing legal are sufficient to sustain a conviction without further sufficiency, we "determine whether the necessary infer- identification evidence." 17 In burglary cases, fingerprints ences are reasonable based upon the combined and cu- constitute direct evidence of the ultimate fact to be Page 6 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

proved--illegal entry. 18 In this case, the ultimate fact to additional piece of incriminating circumstantial evi- be proved is the identity of Playonero's killer. 19 Clayton's dence. And, in this case, an inference of guilt based on bloody prints do not constitute direct evidence of the flight was heightened by the obvious conflict between ultimate fact to be proved--that Clayton shot Playonero. Clayton's stated [**17] reason for fleeing the park and The prints establish only that Clayton was at the crime his explanation accounting for the presence of the bloody scene some time after Playonero was shot. Therefore, the prints. Although the court of appeals accurately deter- court of appeals correctly concluded that the prints, mined that Clayton's failure to inform authorities about standing alone, do not sufficiently establish that Clayton Playonero is not enough to establish guilt, 21 the court shot Playonero. However, the prints constitute circum- disregarded this circumstance as it related to the incon- stantial evidence [**15] and, by considering the prints gruity between Clayton's testimony accounting for the in isolation, the court failed to recognize their signifi- bloody prints and his flight. Explaining the presence of cance when considered with the remaining circumstantial his prints, Clayton testified that, after discovering Play- evidence admitted at Clayton's trial. onero bloody in the backseat of the car, he was con- cerned and tried to move the car to get help for Play- 17 Phelps. v. State, 594 S.W.2d 434, 435 (Tex. onero. Clayton stated that he spent two minutes trying to Crim. App. 1980) (quoting Dues v. State, 456 remove the car from the mud but that he was unsuccess- S.W.2d 116, 117 (Tex. Crim. App. 1970)). ful because the tires would spin in the mud. Yet, contrary 18 Eiland v. State, 509 S.W.2d 596, 598 (Tex. to his stated objective, Clayton testified that he quickly Crim. App. 1974). abandoned his efforts to help Playonero: 19 See id. Q [Prosecutor]. You hear the crash, In addition to establishing Clayton's presence at the what do you do? crime scene after Playonero was shot, the bloody prints provide an additional, incremental piece of circumstan- A [Clayton]. I get in my car and tial evidence that support an inference that Clayton was leave. the shooter. During the State's closing argument, the Q. What about the man in the prosecutor used the quantity of bloody prints to discredit backseat of the car? Did anyone help him? Clayton's explanation and further its trial theory. Direct- ing the jury's attention to a photograph of Playonero's A. I was trying to help him; but when body, the prosecutor stated that Playonero's hands "were I heard the truck flip over, I didn't know fairly clean." Reminding the jury that Clayton testified what to do. that he only grasped one of Playonero's hands, the pros- Q. You're going to leave the park to ecutor argued, "That's not enough blood on the man's hand to be able to leave it behind to be able to leave that go get him help? many prints. And to leave that much blood on the center A. I was just trying to get away, sir. console, gear shift, door, didn't [**16] happen." In con- [**18] Get away from there, that's it. sidering the evidence relied on by the prosecutor, a ra- tional juror could infer that Clayton lied about the extent Q. So you had decided to stop help- of his involvement with Playonero and therefore lied ing this man and you're just leaving. about his involvement in Playonero's death. And, when You're done with it. You can't get the car considered with Sergeant Smith's testimony about the out. You're on your own, Buddy, I'm unlikelihood that Playonero was shot at the crime scene, leaving; is that correct? a juror could rationally infer that, in order to dispose of A. Yes, sir. the evidence, Clayton drove Playonero to the park in the Avalon after he was shot. Indeed, such an inference would be consistent with Davis's statement that she did Clayton also admitted that he failed to stop and tell the not see any vehicles leave the park when she was assist- animal-control officers about Playonero even though ing the driver of the truck outside of the park's exit as they were just across the street from the park's exit as- well as the medical examiner's testimony that Playonero sisting the truck driver. Indeed, Clayton conceded that he would be able to live for only five to ten minutes after failed to call 911 or notify anyone about Playonero after sustaining the gunshot wounds. he left the park. In short, Clayton's sudden flight does not [*780] We have recognized that [HN2] a fact- comport with Clayton's "Good Samaritan" explanation finder may draw an inference of guilt from the circum- for the presence of the prints. Additionally, Clayton's stance of flight. 20 Clayton's flight from the park, which "Good Samaritan" explanation was also inconsistent with the court of appeals failed to consider, constitutes an evidence showing that there was no mud thrown on the front fender of the Avalon. Therefore, a rational juror Page 7 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

considering Clayton's explanation could draw a strong opined that, based on his investigation and his review of inference of guilt based on his flight from the park. the crime scene photos and the autopsy report and pho- tographs, Playonero's murder was likely drug-related. In 20 Hardesty v. State, 656 S.W.2d 73, 78 (Tex. offering [**21] his opinion, Officer Sosa emphasized Crim. App. 1983); Jones v. State, 481 S.W.2d the nature of Playonero's wounds, the fact that Playonero 900, 902 (Tex. Crim. App. 1972). was left for dead, the fact that the car was covered in 21 Clayton, 169 S.W.3d 258. blood, and the fact that someone tried to burn the car in an effort to destroy evidence. Sergeant Smith offered the Similar to flight, although a marginally less incul- same opinion. Based on his training and experience, his patory piece of circumstantial evidence, is Clayton's fail- investigation at the park, the nature of Playonero's ure [**19] to turn himself into police on the arrest war- wounds, and the fact that Playonero was Columbian, rant. The warrant was issued eight days after Clayton Sergeant Smith theorized that it was a drug-related kill- was identified through the bloody prints. Officer Sosa ing. A juror considering the testimony of Officer Sosa testified that he and his partner tried to locate Clayton and Sergeant Smith could rationally infer that Play- over the course of a week after the warrant was issued. onero's murder was drug-related. Even though the court He testified that he informed Clayton's grandmother, of appeals gave short-shrift to the circumstantial evi- mother, girlfriend, and father's girlfriend about the war- dence supporting the State's theory, its ultimate conclu- rant. He also stated that Clayton's attorney contacted his sion about the evidentiary value of the proof of motive partner on July 30th about the warrant. Clayton denied was correct. Because there was no evidence of a prior knowing about the warrant until he was arrested the fol- relationship between Clayton and Playonero and no evi- lowing March, eight months after the warrant was issued. dence that Clayton was involved with drugs, the circum- When the prosecutor [*781] asked Clayton where he stantial evidence of motive was insufficient to establish had been during the eight months, Clayton said he had Clayton's identity as Playonero's killer; it only provided been at his grandmother's house, mother's house, father's the jury with an explanation for Playonero's death. As a house, and girlfriend's house. A rational juror consider- result, a juror weighing this evidence could not rationally ing this evidence, could infer that Clayton knew about [**22] draw an inference of guilt from this evidence the warrant and intentionally avoided apprehension. As alone. with the circumstance of flight, under the specific facts of this case, a juror could reasonably draw an inference Finally, we consider the timing of the events sur- of consciousness of guilt based on Clayton's failure to rounding Playonero's death. As stated above, Clayton's turn himself into authorities. own testimony, together with his bloody prints, establish that he was with Playonero in the park after Playonero When considering motive, the court of appeals cor- was shot. Clayton testified that he was with Playonero rectly recognized that although [**20] motive is not an for at least two to three minutes after Playonero was shot. element of murder, 22 it may be a circumstance that is Referring to Playonero's neck injury, the medical exam- indicative of guilt. 23 Noting that there was no evidence iner testified: "I think that five to ten minutes would be connecting Clayton to Playonero, the court stated that the outer limit of how long [Playonero] would have been Officer Sosa's theory that the murder was drug-related able to survive this type of injury." Davis testified that because of Playonero's involvement in dealing drugs did Playonero [*782] died in her arms approximately ten not "prove a motive sufficient to establish beyond a rea- minutes after she discovered him, which was approxi- sonable doubt" that Clayton shot Playonero. In reaching mately fifteen to twenty minutes after the truck veered this conclusion, however, the court failed to off the road. She stated that she did not see anyone enter acknowledge all of the circumstantial evidence that sup- or leave the park and did not hear any gunshots while she ported the State's theory that Playonero's murder was was assisting the truck driver. She also testified that she drug-related. did not see anyone else in the park when she discovered Playonero. 22 Id. (citing Ates v. State, 21 S.W.3d 384, 390 (Tex. App.-Tyler 2000, no pet.); Reeves v. State, In resolving the conflicting testimony offered by 969 S.W.2d 471, 479 (Tex. App.-Waco 1998, pet. Davis and the medical examiner about how long Play- ref'd)). onero survived after being shot, a rational juror could 23 Id. (citing Guevara v. State, 152 S.W.3d 45, reasonably place Clayton in Playonero's [**23] pres- 50 (Tex. Crim. App. 2004); King v. State, 29 ence at the time of the shooting. Playonero had, at most, S.W.3d 556, 565 (Tex. Crim. App. 2000)). a survival time of ten minutes after he was shot in the neck. Given Davis's testimony that Playonero lived for The State's theory rested on more than Officer Sosa's some time after she discovered him and the evidence testimony about Playonero's involvement with drugs. indicating that no one other than Clayton was with Play- Drawing on his training and experience, Officer Sosa Page 8 235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **

onero during the final minutes of his life, it is rational to Because we hold that the court of appeals erred in infer that Clayton was with Playonero when he was shot. holding that the evidence was legally insufficient to And when considered with the combined and cumulative support Clayton's conviction for murder, we reverse the force of the incriminating circumstantial evidence dis- judgment of the court of appeals and remand this case so cussed above, we hold that a rational juror could find, the court can consider Clayton's factual sufficiency beyond a reasonable doubt, that Clayton was responsible claim. 24 for killing Playonero. 24 Watson v. State, 204 S.W.3d 404 (Tex. After reviewing the evidence under the Jackson Crim. App. 2006). standard, we hold that the evidence is legally sufficient to support the jury's guilty verdict. DATE DELIVERED: October 10, 2007 PUBLISH Conclusion Page 1

Questioned As of: Aug 02, 2017

STEVEN TROY CURRY, Appellant v. THE STATE OF TEXAS

NO. 1521-99

30 S.W.3d 394; 2000 Tex. Crim. App. LEXIS 87

September 20, 2000, Date Delivered

PRIOR HISTORY: [**1] FROM THE EIGHTH sufficiency of the evidence should have been measured COURT OF APPEALS, HARRIS COUNTY. by using a hypothetically correct jury charge including the deleted language. Applying that standard, the court DISPOSITION: Affirmed. held that the evidence supported the conviction.

CASE SUMMARY: OUTCOME: Conviction affirmed because even though trial court erred in granting the State's motion to amend indictment, since language it sought to delete was not PROCEDURAL POSTURE: Criminal appellant and mere surplusage, a proper sufficiency analysis using a State petitioned for discretionary review from a court of hypothetically correct jury charge conducted with that appeals (Texas) holding that the trial court erred in language included showed the evidence was sufficient to granting State's motion to amend indictment against ap- support the conviction. pellant to delete phrase that appellant used and threat- ened to use deadly force, a firearm, after appellant was LexisNexis(R) Headnotes charged with aggravated kidnapping.

OVERVIEW: Criminal appellant was charged with ag- gravated kidnapping. At trial, the victim testified appel- Criminal Law & Procedure > Accusatory Instruments lant and two other individuals forced him into a car and > Accusatory Instruments Generally > Contents > Suf- beat him. The victim originally told police appellant had ficiency a gun, but denied saying that at trial. The State's indict- Criminal Law & Procedure > Accusatory Instruments ment initially included the language that appellant com- > Accusatory Instruments Generally > Due Process mitted the kidnapping by using and threatening to use Criminal Law & Procedure > Accusatory Instruments deadly force, namely, a firearm. Over objection, after the > Indictments > Due Process State rested its case it moved to delete that phrase. The [HN1] Both the U.S. Constitution and the Texas Consti- motion was granted. On appeal, the court held the ruling tution guarantee an accused the right to be informed of on the deletion was error, but that the evidence was suf- the nature and cause of the accusation against him. The ficient to support appellant's conviction. Both parties charging instrument must convey sufficient notice to petitioned for discretionary review. The court affirmed allow the accused to prepare a defense. The legislature the appellate court's ruling upholding the conviction. The has provided some guidance as to the adequacy of notice court held that since the language was not mere surplus- through ch. 21 of the Code of Criminal Procedure. In age, but described the manner or means of the abduction, particular, Tex. Code Crim. P. Ann. art. 21.03 provides it should not have been deleted. The court then held the Page 2 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

that everything should be stated in an indictment which [HN6] Abduction adds to "restraint" the intent to prevent is necessary to be proved. liberation in one of two ways: either by secreting or by the use or threat of deadly force. Tex. Penal Code § 20.01(2). An essential element of abduction is that the Criminal Law & Procedure > Accusatory Instruments defendant intended to prevent the liberation of the com- > Indictments > Contents > Sufficiency plainant. [HN2] An indictment is generally sufficient to provide notice if it follows the statutory language. But tracking the language of the statute may be insufficient if the stat- Criminal Law & Procedure > Trials > Burdens of utory language is not completely descriptive, so that Proof > Prosecution more particularity is required to provide notice. For ex- Criminal Law & Procedure > Jury Instructions > Par- ample, when a statute defines the manner or means of ticular Instructions > Use of Particular Evidence commission in several alternative ways, an indictment [HN7] A hypothetically correct jury charge is one which will fail for lack of specificity if it neglects to identify accurately sets out the law, is authorized by the indict- which of the statutory means it addresses. On the other ment, does not unnecessarily increase the State's burden hand, the State need not plead evidentiary matters. of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. This list is not neces- Criminal Law & Procedure > Accusatory Instruments sarily exhaustive. > Indictments > Contents > Surplusage [HN3] Allegations not essential to constitute the offense, and which might be entirely omitted without affecting Criminal Law & Procedure > Criminal Offenses > the charge against the defendant, and without detriment Crimes Against Persons > Kidnapping > General Over- to the indictment are treated as mere surplusage, and may view be entirely disregarded. The exception to that rule is [HN8] The language of the aggravated kidnapping stat- when the unnecessary matter is descriptive of that which ute alleges that a defendant acted toward the victim with is legally essential to charge a crime. Extra language is the intent to either (1) hold him for ransom or reward; (2) descriptive of an element of the offense if it defines the use him as a shield or hostage; (3) facilitate the commis- offense more narrowly, places it in a specific setting, or sion of a felony or the flight after the attempt or commis- describes the method by which it was committed. Such sion of a felony; (4) inflict bodily injury on him or vio- language must be proven as alleged, even though need- late or abuse him sexually; (5) terrorize him or a third lessly stated. person; or (6) interfere with the performance of any gov- ernmental or political function. Tex. Penal Code § 20.04(a). Criminal Law & Procedure > Grand Juries > Proce- dures > Return of Indictments > Motions to Quash Criminal Law & Procedure > Accusatory Instruments Criminal Law & Procedure > Verdicts > Inconsistent > Indictments > General Overview Verdicts [HN4] Whether an indictment fails to charge an offense Criminal Law & Procedure > Appeals > Standards of at all is an entirely different issue from whether the in- Review > General Overview dictment fails to provide adequate notice and is therefore Evidence > Procedural Considerations > Weight & subject to a motion to quash. Sufficiency [HN9] In reviewing the sufficiency of the evidence, an appellate court must view the evidence in the light most Criminal Law & Procedure > Criminal Offenses > favorable to the verdict and determine whether any ra- Crimes Against Persons > Kidnapping > Elements tional trier of fact could have found the essential ele- [HN5] The Texas Penal Code does not merely describe ments of the offense beyond a reasonable doubt. An ap- circumstances in which an abduction is unlawful; it de- pellate court resolves inconsistencies in the testimony in fines an abduction as a restraint accompanied by an in- favor of the verdict. tent to prevent liberation. Tex. Penal Code § 20.01(2).

Criminal Law & Procedure > Criminal Offenses > Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Kidnapping > General Over- Crimes Against Persons > Kidnapping > General Over- view view Page 3 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

Criminal Law & Procedure > Criminal Offenses > Williams then testified that he never told the police Weapons > Use > Simple Use > Elements that Curry had a gun, that Curry had gotten out of the [HN10] An abduction is a continuous, ongoing event. car, or that Curry had threatened him. The State im- There is no time limit for an abduction. peached Williams' credibility with the statements that he had previously made to the police. On COUNSEL: Charles Freeman, Houston. cross-examination, Williams testified that he had no rec- ollection of anything he said to anyone from the time he Jeffrey L. Van Horn, First. Assist. St. Att., Austin. was thrown in the car until the time he awoke at the hos- pital. On [**3] re-direct examination, Williams admit- JUDGES: Keasler, J., delivered the opinion of the ted that, after the incident, he was placed in a holdover Court, in which McCormick, P.J., and Mansfield, Keller, cell with Curry and had been concerned for his safety. Price, Holland, and Womack, J.J., joined. Johnson, J., Later in the trial, Williams got back on the stand and delivered a dissenting opinion in which Meyers, J., testified [*397] that Curry was not the person who joined. kidnapped him and beat him up. Williams was found by emergency medical techni- OPINION BY: Keasler cians in a warehouse district. He was tied up with his pants around his ankles and was shaking uncontrollably. OPINION He was hospitalized for a dislocated knee and elbow, [*396] ON APPELLANT'S AND STATE'S PE- trauma to the head, and gross instability. TITIONS FOR DISCRETIONARY REVIEW Tracy Jacobs testified that he saw Curry that night The State's indictment of Steven Curry charged him getting out of a similar-looking car and holding a gun. with aggravated kidnapping "by using and threatening to Curry shot and killed another individual, then returned to use deadly force namely, a firearm." Over Curry's objec- the car and the car drove off. Other testimony revealed tion, the trial court permitted the State to delete this that Curry's home had been burglarized the day before. phrase after trial began. We must decide whether the trial The burglars had broken into his home by breaking down court erred in allowing this deletion, and whether a suffi- the door. Curry suspected that Williams was responsible ciency analysis should include this allegation. We con- for the burglary. Williams was a petty thief who routine- clude that once the State made this allegation, it had to ly sold stolen jewelry at the Spices Club. He had several prove it. We also conclude that the sufficiency of the theft convictions. evidence must be analyzed by using this phrase. And in Curry presented an alibi defense. John McCalep tes- conducting this analysis, we find the evidence sufficient tified that he was working on Curry's front door from to support Curry's conviction. about 5 p.m. to about 11 p.m. that [**4] night. He testi- fied that Curry was either in the apartment or nearby the FACTS entire time. Curry testified similarly. Jetterson Williams testified that he was in the park- The State refuted that testimony with the testimony ing lot of the Spices Nightclub at about 8 p.m. when of Cynthia Floyd, Curry's girlfriend at the time. She tes- Curry and two other individuals "put" him into a car and tified that she was at the apartment the entire time while drove off. He [**2] testified that he did not want to be McCalep was working on the door, but Curry left the in the car. While in the car, Curry beat him up with his apartment around 7 or 8 p.m. and never returned. She hands. Curry twisted Williams' knee and arm and also testified that Curry told her to say that she was with punched Williams in the head. Williams did not recall him that evening. the length of the beating, whether the car made any stops, whether Curry said anything to him, or whether PROCEDURAL BACKGROUND Curry got a gun at any time. Williams admitted previ- ously telling the police that Curry had dragged him to the The State indicted Curry for aggravated kidnapping. car, that Curry and the other men had beaten him with a The indictment alleged that Curry "abducted Jetterson brick, that Curry had tied him up and put a plastic bag Williams . . . without his consent, with intent to prevent over his face, that Curry had gone by a friend's house and his liberation by using and threatening to use deadly obtained a .38 pistol, that Curry had exited the car at one force namely, a firearm, on [Williams] and with intent to point and Williams had heard three gunshots, and that inflict bodily injury on [Williams] and to terrorize [Wil- Curry had forbidden Williams to tell to anyone what had liams] and to violate and abuse [Williams] sexually." happened. After the State rested its case, it moved to delete the phrase "by using and threatening to use deadly force Page 4 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

namely, a firearm, on [Williams]" from the indictment. Rather than "losing" the allegation it deleted, it essen- The trial court granted that motion over Curry's objec- tially retained that allegation and added the alternative tion. definition of abduction, giving it the opportunity to prove either one in order to obtain a conviction. By deleting the On appeal, the court of appeals held that it was error words it did, the State actually broadened the scope of under Art. 28.10(b) for [**5] the trial court to grant the the offense alleged so as to include both theories of ab- State's motion, and the error harmed Curry. 1 On Curry's duction. This is not like a standard "abandonment," sufficiency point, the court of appeals held that the evi- which results in the State limiting its theories at trial. We dence was sufficient to convict. 2 Curry filed a petition will refer to the deletion of the phrase in this case as a for discretionary review in which he argued that the court modification of the indictment, rather than an abandon- of appeals erred in its sufficiency analysis by failing to ment. apply Malik v. State. 3 We agreed and remanded the case to the court of appeals to reconsider Curry's sufficiency Legal Background point in light of Malik. 4 [HN1] Both the U.S. Constitution and the Texas Consti- 1 Curry v. State, 966 S.W.2d 203, 205-06 (Tex. tution guarantee an accused the right "to be informed of App. -- El Paso 1998). the nature and cause of the accusation" against him. 8 The 2 Id. at 207. charging instrument must convey sufficient notice to 3 953 S.W.2d 234 (Tex. Crim. App. 1997). allow the accused to prepare a defense. 9 The Legislature 4 Curry v. State, 975 S.W.2d 629 (Tex. Crim. [**8] has provided some guidance as to the adequacy of App. 1998). notice through Chapter 21 of the Code of Criminal Pro- cedure. 10 In particular, Art. 21.03 provides that "every- On remand, the court of appeals again found that the thing should be stated in an indictment which is neces- trial court's ruling on the State's motion to amend the sary to be proved." 11 indictment was error and the error harmed Curry. 5 In its sufficiency analysis, the court concluded that it was 8 U.S. CONST., AMEND. VI.; TEX. CONST. "bound by the theory alleged in the indictment as Art. I, § 10. amended." 6 Since [**6] neither the jury charge given 9 State v. Mays, 967 S.W.2d 404, 406 (Tex. nor the amended indictment required proof that Curry Crim. App. 1998). used a firearm, the court found the evidence sufficient to 10 Ferguson v. State, 622 S.W.2d 846, 849 support a conviction. 7 (Tex. Crim. App. 1981) (op. on reh'g). 11 TEX. CODE CRIM. PROC. Art. 21.03. 5 Curry v. State, 1 S.W.3d 175, 177-79 (Tex. App. -- El Paso 1999). [HN2] An indictment is generally sufficient to pro- 6 Id. at 181. vide notice if it follows the statutory language. 12 But 7 Ibid. tracking the language of the statute may be insufficient if the statutory language is not completely descriptive, so Both the State and Curry filed petitions for discre- that more particularity is required to provide notice. 13 tionary review, from which we [*398] granted three For example, when a statute defines the manner or means grounds. The State, through the State Prosecuting Attor- of commission in several alternative ways, an indictment ney and the Harris County District Attorney, contends will fail for lack of specificity if it neglects to identify that the phrase at issue in the indictment was surplusage, which of the statutory means it addresses. 14 [**9] On unnecessary to the indictment, so the State was permitted the other hand, the State need not plead evidentiary mat- to "abandon" the language even after trial began. Curry ters. 15 argues that the court of appeals erred in its sufficiency analysis, because under Malik, the hypothetically correct 12 Olurebi v. State, 870 S.W.2d 58, 62 (Tex. jury charge would have included the phrase which the Crim. App. 1994). State was improperly allowed to abandon. Since the res- 13 Ibid. olution of Curry's claim depends on our resolution of the 14 Mays, 967 S.W.2d at 407. State's contention, we address the State's claim first. 15 Berg v. State, 747 S.W.2d 800, 809 (Tex. [**7] MODIFICATION OF INDICTMENT Crim. App. 1984) (op. on reh'g). Initially, we note that this case does not really in- volve an "abandonment" of an allegation. The State was Not every list of alternatives in a statute will constitute a permitted to delete its specific allegation regarding the "manner or means" of committing the offense. For ex- type of abduction it sought to prove. As a result, it was ample, in Thomas v. State, we held the State need not permitted at trial to prove either definition of abduction. allege which statutory definition of "owner" it seeks to Page 5 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

prove in a theft case. 16 We reached this conclusion be- setting, or describes the method by which it was com- cause the term "owner" did not "go to an act or omission mitted." 29 Such language "must be proven as alleged, of the defendant." 17 Similarly, we held the State need not even though needlessly stated." 30 further define the phrase "without effective consent," as [*399] that phrase did not constitute an act or omission 26 526 S.W.2d 799 (Tex. Crim. App. 1975). on the part of the defendant. 18 In contrast, in Ferguson v. 27 Id. at 802. State, we held the State did need to allege, in the face of 28 Ibid. a motion to quash, which method of delivery it sought to 29 Upchurch v. State, 703 S.W.2d 638, 641 prove [**10] in a delivery of controlled substance (Tex. Crim. App. 1985). prosecution. 19 This was because delivery was "the act by 30 Id. at 640, citing Burrell, 526 S.W.2d at the [defendant] which constituted the criminal conduct." 802. 20

It is important to distinguish two concepts. [HN4] 16 Thomas v. State, 621 S.W.2d 158, 164 (Tex. Whether an indictment fails to charge an offense at all is Crim. App. 1981) (op. on reh'g). an entirely different issue from whether the indictment 17 Ibid. fails to provide adequate notice and is therefore subject 18 Id. at 161. to a motion to quash. 31 We are concerned today only 19 Ferguson, 622 S.W.2d at 850-51. with what the indictment must allege to provide notice to 20 Id. at 850. the defendant.

More recently, in Saathoff v. State, 21 we extended 31 Olurebi, 870 S.W.2d at 62 n.5. the concept beyond acts and omissions to conduct. 22 There, we held that the State must allege, in the face of a [**13] Application motion to quash, which type of intoxication it seeks to prove in a prosecution for involuntary manslaughter. 23 To determine whether the phrase in this case was The State argued that intoxication was not an act or surplusage, we review our cases on surplusage. The vast omission, but merely a condition. We held the State in- majority of our surplusage cases involve language that is terpreted the concept of "act or omission" too narrowly. 24 not derived from any statute. In those cases, the language We concluded that "if the prohibited conduct is statuto- at issue is either unnecessary language that need not be rily defined to include more than one manner or means proved 32 or descriptive language that must [*400] be of commission," the State must allege, upon timely re- proved even though needlessly alleged. 33 quest, [**11] which manner or means it seeks to es- tablish. 25 32 Eastep v. State, 941 S.W.2d 130, 135 (Tex. Crim. App. 1997) (abandonment of some appro- 21 891 S.W.2d 264 (Tex. Crim. App. 1994). priations in theft indictment permissible where 22 TEX. PENAL CODE § 1.07(a)(10) (conduct aggregate value of remaining appropriations was means an act or omission and its accompanying still over $ 20,000); Swope v. State, 805 S.W.2d mental state). 442 (Tex. Crim. App. 1991) (State need not al- 23 891 S.W.2d at 267. lege, to provide notice, acts defendant charged as 24 Id. at 266. party committed which constituted manner or 25 Ibid. means in which he solicited, encouraged, di- rected, or aided primary actor); Mays v. State, Sometimes the State alleges evidentiary matters in 726 S.W.2d 937, 941-42 (Tex. Crim. App. 1986) its indictment which are not "necessary to be proved" (allegation of conduct of another person was sur- under Art. 21.03. These allegations are considered "sur- plusage and need not be proved because did not plusage." In Burrell v. State, 26 we explained that "[HN3] describe any conduct of defendant's); Upchurch, allegations not essential to constitute the offense, and supra (allegation that vehicle was "exempt" was which might be entirely omitted without affecting the not descriptive of any element of offense of fail- charge against the defendant, and without detriment to ure to maintain financial responsibility so was the indictment are treated as mere surplusage, and may surplusage and need not be proved); Carberry v. be entirely disregarded." 27 The exception to that rule is State, 701 S.W.2d 255 (Tex. Crim. App. 1985) when "the unnecessary matter is descriptive of that (excessive markings by bank on tenor of check which is legally essential to charge a crime." 28 In Up- alleged in forgery indictment were surplusage church v. State, we explained that extra language is "de- and need not be proved); Ex parte Williams, 622 scriptive" of an element [**12] of the offense if it "de- S.W.2d 876, 877 (Tex. Crim. App. 1981) (allega- fines the offense more narrowly, places it in a specific tions in credit card abuse indictment that card Page 6 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

was "owned by complainant" and stolen "from 484 (Tex. Crim. App. 1984) (allegation that de- complainant" were surplusage and need not be fendant used instrument "known as a psycholog- proved, even though alleged); Hardie v. State, ical stress evaluator" was descriptive of "instru- 588 S.W.2d 936, 938-39 (Tex. Crim. App. 1979) ment" element of offense, so once alleged, had to (allegation of culpable mental state was surplus- be proved); Franklin v. State, 659 S.W.2d 831 age and need not be proved where not an element (Tex. Crim. App. 1983) (unnecessary allegation of offense); Smallwood v. State, 607 S.W.2d 911, that defendant knew property was stolen from 912 (Tex. Crim. App. 1979) (allegation in robbery Elmer L. Herzberg was descriptive of stolen indictment that property stolen was "three pair property element of offense, so once alleged, had women's slacks" was surplusage because property to be proved); Windham v. State, 638 S.W.2d 486, taken not essential element of offense so need not 487 (Tex. Crim. App. 1982) (phrase "by shooting be proved, even though alleged); Green v. State, at her with a gun" was allegation of act amount- 578 S.W.2d 411 (Tex. Crim. App. 1979) (allega- ing to more than mere preparation so had to be tion in criminal mischief indictment that property proven); Garcia v. State, 595 S.W.2d 533 (Tex. was "seven miles north of Palo Pinto County" Crim. App. 1980) (allegation that defendant did was unnecessary and not descriptive of what was "take, steal, appropriate and carry away" was un- legally essential, so was surplusage, and need not necessary but once alleged, had to be proved); be proved, even though alleged); Ferguson v. Weaver v. State, 551 S.W.2d 419 (Tex. Crim. App. State, 572 S.W.2d 521, 524 (Tex. Crim. App. 1977) (allegation that gun was a "Ruger" was de- 1978) (word "copy" on tenor of security in in- scriptive of deadly weapon element of offense, so dictment was surplusage and need not be proved once alleged, had to be proved); Rowland v. because not descriptive of offense); Davis v. State, 523 S.W.2d 676 (Tex. Crim. App. 1975) State, 532 S.W.2d 626 (Tex. Crim. App. 1976) (allegation "on F.M. 1632" was descriptive of (allegation of money stolen in robbery was sur- "upon a public highway" element of offense, so plusage and need not be proved where indictment once alleged, had to be proved); Cohen v. State, also alleged automobile was stolen and robbery 479 S.W.2d 950, 951 (Tex. Crim. App. 1972) (al- prosecution did not require proof that all the legation "in the 12,300 block of Westheimer property alleged was in fact stolen); Collins v. Road" was unnecessary, but descriptive of "in the State, 500 S.W.2d 168, 169 (Tex. Crim. App. city of Houston, Texas," an element of offense, 1973) (allegation of value "over $ 5.00" surplus- so once alleged, had to be proved); McClure v. age, as statute only required value be below $ State, 296 S.W.2d 263, 163 Tex. Crim. 650 (1956) 50.00); Malazzo v. State, 308 S.W.2d 29, 31, 165 (allegation "at the Alamo Cafe located at Cleve- Tex. Crim. 441 (1957) (allegation of value "in land and Second Streets" was descriptive of loca- excess of $ 25" surplusage and need not be tion element of offense so once alleged, had to be proved). proved). [**14] [**15] But in the case at hand, the language at is- 33 Langston v. State, 855 S.W.2d 718, 721-22 sue comes directly from a statute, specifically, Penal (Tex. Crim. App. 1993) (allegation in trespass Code § 20.01(2)(B). We only have a handful of surplus- case that property was "owned by Karen John- age cases concerning statutory language. Some of those son" was unnecessary but once alleged, had to be cases hold that statutory language [*401] must be proved, presumably because it was descriptive of proved if alleged. 34 Others hold that excessive statutory property); Polk v. State, 749 S.W.2d 813, 816 language is surplusage and need not be proved. 35 The (Tex. Crim. App. 1988) (allegation that individual State relies on this latter line of authority for its conten- was "unknown" to grand jurors was descriptive of tion that the statutory language alleged here was sur- element of "another," so once alleged, had to be plusage and need not have been proved. proved); Huffman v. State, 726 S.W.2d 155, 156-57 (Tex. Crim. App. 1987) (allegation of 34 Thomas v. State, 753 S.W.2d 688, 692 (Tex. "Black Hat Bar" was unnecessary but descriptive Crim. App. 1988) (allegation that owner did not of "licensed premises" so once alleged, had to be give his "assent in fact" was unnecessary but de- proved); Wray v. State, 711 S.W.2d 631, 634 scriptive of element of lack of effective consent, (Tex. Crim. App. 1986) (allegation "by pointing so once alleged, had to be proved); Reynolds v. said deadly weapon at Mary Ann Henderson" State, 723 S.W.2d 685, 686-87 (Tex. Crim. App. was descriptive of element of threatening another 1986) (statutory alternatives for type of restraint, with imminent bodily injury, so once alleged, had whether by moving victim from one place to an- to be proved); Clark v. State, 665 S.W.2d 476, other or confining victim, must be alleged in face Page 7 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

of motion to quash); Gibbons v. State, 652 State, is questionable. Porter does not conflict [**18] S.W.2d 413, 415 (Tex. Crim. App. 1983) (State with Gibbons. must allege which type of abduction it seeks to prove in face of motion to quash), overruled in 38 Ibid. part, Adams v. State, 707 S.W.2d 900, 902-03 39 Ibid. (Tex. Crim. App. 1986) (error does not result in 40 Thomas, 621 S.W.2d at 161. automatic reversal); Ferguson, 622 S.W.2d at The State also argues that Berg 41 conflicts with 850-51 (State must allege which type of delivery Gibbons. In Berg we stated that the term "appropriate" it seeks to prove in face of motion to quash). need not be further defined. 42 The State contends that [**16] "appropriate" and "abduct" are the same. We disagree. 35 Berg, 747 S.W.2d at 809 (allegation that Appropriation itself is not defined in the Penal Code. appropriation was "without owner's effective Rather, the Code describes in which circumstances an consent" was not element of offense of theft so appropriation is unlawful. 43 We explained in Berg that was surplusage and need not be proved, even the "manner of acquisition or circumstances surrounding though alleged); Ward v. State, 642 S.W.2d 782, the acquisition [*402] are merely evidentiary matters." 783 (Tex. Crim. App. 1982) (false imprisonment 44 We relied on McClain v. State. 45 In McClain, we ex- indictment need not allege that restraint was plained that the manner of acquisition is irrelevant under "without consent"; that phrase is within definition the Penal Code. 46 While earlier versions of the Code had of "restrain" and would be surplusage); Jackson set out distinct theft offenses based on the manner of v. State, 633 S.W.2d 897, 899 (Tex. Crim. App. acquisition, the current Code removes that focus entirely. 1982) (allegation that habitation "was not then 47

open to the public" was unnecessary in burglary indictment so need not be proved, even though 41 Berg, 747 S.W.2d at 809. alleged). [**19] We have already held contrary to the State's position 42 Ibid.; but see Coats v. State, 712 S.W.2d 520 with regard to this precise statute. In Gibbons, we held in (Tex. Crim. App. 1986) (term appropriate must be an aggravated kidnapping case that the State must allege, defined); Coleman v. State, 643 S.W.2d 124 (Tex. in the face of a motion to quash, which type of abduction Crim. App. 1982), (same); Gorman v. State, 634 it seeks to prove. 36 The State argues that our holding in S.W.2d 681 (Tex. Crim. App. 1982) (same). Gibbons was incorrect, conflicts with Berg, Ward, and 43 TEX. PENAL CODE § 31.03(b). Ex parte Porter, 37 and should be overruled. We disagree. 44 Berg, 747 S.W.2d at 809. 45 687 S.W.2d 350 (Tex. Crim. App. 1985). 36 Gibbons, 652 S.W.2d at 415. 46 Id. at 353-55. [**17] 47 Id. at 353. 37 827 S.W.2d 324, 327 (Tex. Crim. App. The term "abduct" is different from "appropriate." 1992) (op. on reh'g) First, unlike "appropriate," "abduct" is defined in the In Porter, we held that the State need not allege Penal Code. [HN5] The Penal Code does not merely de- which definition of "forgery" it seeks to prove. The State scribe circumstances in which an abduction is unlawful; contends that "abduct" is no different than "forge." But it defines an abduction as a restraint accompanied by an Porter concerns the allegations the State must make in intent to prevent liberation. 48 So the treatment of the order for an indictment to allege an offense. It does not terms "appropriate" and "abduct" in the Penal Code is concern which allegations the State needs to make in different. Second, there is no legislative history pertain- order to provide notice. We did state that the particular ing to the kidnapping statute similar to that of the theft definition of forgery was merely an evidentiary matter. 38 statute. There has been no effort on the Legislature's part But we also indicated that in the face of a motion to to codify [**20] many different types of kidnapping quash for lack of notice, the State would be required to into a single statute. We conclude the rationale behind make this allegation. 39 This reasoning seems to conflict Berg and McClain is not applicable to the kidnapping with Thomas's holding that evidentiary matters need not statute. be alleged even in the face of a motion to quash. 40 But since the holding in Porter was that the indictment was 48 TEX. PENAL CODE § 20.01(2). not fundamentally defective, the statements regarding In Ward, the issue was whether informations charg- notice are merely dicta. Porter's holding is irrelevant to ing false imprisonment were fundamentally defective for the issue before us, and its dicta, though it refutes the failing to allege that the restraint was "without consent." 49 In holding the informations were not defective, we Page 8 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

stated that the phrase "without consent" was surplusage. described the statutory alternatives here as the "peripher- 50 This case is also distinguishable. First, "abduct" is al aspects" of the act of entering. 61 conduct, but "without consent" is neither an act, omis- sion, nor conduct. 51 So under Thomas, Ferguson, and 57 TEX. PENAL CODE § 30.02(b). Saathoff, "abduct" must be defined while "without con- 58 647 S.W.2d at 290. sent" need not be. 59 Ibid. 60 Ibid. 49 642 S.W.2d at 783. 61 41 GEORGE E. DIX & ROBERT O. 50 Ibid. DAWSON, CRIMINAL PRACTICE AND 51 See Thomas, 621 S.W.2d at 161 (allegation PROCEDURE § 20.119 (1995). of "without effective consent" in theft indictment [HN6] Abduction is different. It adds to "restraint" not act or omission of defendant). the intent to prevent liberation in one of two ways: either [**21] More importantly, there are no statutory by secreting or by the use or threat of deadly force. 62 An alternative manner or means for the "without consent" essential element of abduction is that the defendant in- element of restraint. Restraint is defined as restricting a tended to prevent the liberation of the complainant. 63 person's movement without consent while preventing his Without this accompanying mental state, there is no ab- liberation in either of two ways. 52 Restraint is not re- duction; there is only restraint. The accompanying men- straint unless it is without consent. Since there are no tal state is what transforms mere restraint into abduction. alternatives to "without consent," there would be no need So there is nothing "peripheral" about this intent element. for the State to make this allegation in an indictment to The two alternative mental states provided in the statute provide notice. It is a given under the statute that all re- are [**24] the "manner or means" of engaging in the straint is without consent. In contrast, the only thing conduct of abduction. "given" about an abduction is that it includes restraint. The intent element is not a given, since there are two 62 TEX. PENAL CODE § 20.01(2). statutory alternatives. So Ward is distinguishable. 63 Carpenter v. State, 551 S.W.2d 724, 726 (Tex.Crim.App. 1977). 52 TEX. PENAL CODE § 20.01(1). The rationale in Marrs involved the specific defini- Although the State does not rely on Jackson or tion of "enter" in the burglary statute. It did not set forth Marrs v. State, 53 we note that they, too, are distinguisha- any general principle of statutory construction. The Penal ble. In Jackson, the State alleged in a burgla- Code's definition of "enter" is simply not analogous to its ry-of-a-habitation indictment that the habitation was "not definition of "abduct." then open to the public. [**22] " 54 This language ap- We have never before held that a statutory alterna- pears in the portion of the statute criminalizing burglary tive "manner or means" of engaging in an act, omission, of a building, not a habitation. 55 We held the State did or conduct constitutes surplusage. Indeed, we held the not need to make the allegation and it was surplusage. 56 opposite in Gibbons, Reynolds, 64 and Ferguson. 65 We This case is distinguishable because the statutory lan- decline the State's invitation to create this new rule to- guage at issue was not even an element of the offense day. Instead, we reaffirm our decision in Gibbons and which the State was seeking to prove. hold that the State must allege, in the face of a motion to quash, which type of abduction it seeks to prove in order 53 647 S.W.2d 286 (Tex. Crim. App. 1983). to give the defendant notice. The phrase "by using and 54 633 S.W.2d at 898-99. threatening to use deadly force namely, [**25] a fire- 55 TEX. PENAL CODE § 30.02(a)(1). arm" was not surplusage, and the trial court erred in al- 56 633 S.W.2d at 899. lowing the State to delete this phrase over Curry's objec- Finally, there is no conflict between Marrs and tion after trial had begun. Gibbons. We held in Marrs that "enter" need not be fur- ther defined in a burglary indictment. "Enter" is defined 64 723 S.W.2d at 686-87 (State must allege, in in the Penal Code as intruding any part of the body or face of motion to quash, which statutory alterna- intruding any physical object [*403] connected with tive manner or means of restraint it seeks to the body. 57 We explained in Marrs that the "act" in- prove, whether by moving victim from one place volved in entering is the intrusion. 58 The statutory alter- to another or confining victim). natives listed do not differentiate between methods of 65 622 S.W.2d at 850 (State must allege which intrusion, because both are essentially [**23] the same. type of delivery it seeks to prove in prosecution 59 Both require the defendant to use his body, either di- for delivery of controlled substance). rectly or indirectly. 60 Professors Dix and Dawson have Page 9 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

Within its argument on this issue, the State urges us court's charge, as measured against that indictment, did to overrule the exception to the surplusage rule which not require the jury to find that Curry used a firearm, the provides that if a phrase is descriptive of an essential court [**28] found it "irrelevant whether the evidence element of the offense, it must be proved and cannot be supported such a finding." 71 surplusage. But the phrase in this case was not merely descriptive of an element of the offense; it was a manner 70 Id. at 181. or means of committing an element of the offense. Since 71 Ibid. the phrase here does not fall within the exception to the surplusage rule, we need not (and should [**26] not) Hypothetically Correct Jury Charge decide whether to abandon the exception to the surplus- In considering the court of appeals' analysis, we look age rule. to Malik. Under Malik, sufficiency of the evidence is to be measured against the hypothetically correct jury SUFFICIENCY OF THE EVIDENCE charge. [HN7] A hypothetically correct jury charge is We next address Curry's contention that the court of one which "accurately sets out the law, is authorized by appeals erred in its sufficiency analysis. In its original the indictment, does not unnecessarily increase the opinion, the court of appeals stated without elaborating State's burden of proof or unnecessarily restrict the that it agreed with Curry "that the record contains no . . . State's theories of liability, and adequately describes the evidence" that Curry abducted Williams "by using and particular offense for which the defendant was tried." 72 threatening to use deadly force namely, a firearm." 66 This list is not necessarily exhaustive. 73 [*404] The court did not explain why it agreed with Curry or give any rationale for its conclusion. It made 72 Malik, 953 S.W.2d at 240. this statement without reciting the facts of the case or 73 Id. at 240 n.5. examining any relevant caselaw. Nevertheless, the court Determining the "law" as "authorized by the indict- held the evidence sufficient because it measured the evi- ment" [**29] first requires that we determine which dence against the jury charge given, and that charge did indictment: the State's original indictment or the amend- not require the jury to find that Curry abducted Williams ed indictment. Since we have concluded the indictment by using a firearm. 67 We remanded for the court to apply was erroneously amended, the hypothetically correct jury Malik. 68 charge must be one which is authorized by the original indictment, not the amended indictment. 66 966 S.W.2d at 207. 67 Ibid. We believe the "law" as "authorized by the indict- 68 975 S.W.2d at 630. ment" must be the statutory elements of the offense of aggravated kidnapping as modified by the charging in- On remand, the court of appeals [**27] stated as strument. That is to say, Curry's hypothetically correct follows: jury charge could not simply quote the language of the As we have found in our discussion of Curry's first statute, instructing the jury to find Curry guilty if it found point of error, Curry's remedy for error in amending the that he abducted "another person," because the indict- indictment after trial began is a new trial. The error is ment specifically charges that Curry abducted Williams, adequately addressed with this remedy and we need not and the State was required to prove that element of the fashion an additional remedy of acquittal based on fail- offense. ure of the evidence as measured under the original in- Similarly, the hypothetically correct jury charge dictment. 69 could not simply track [HN8] the statute, alleging the Curry abducted Williams "with the intent to [either] (1) 69 1 S.W.3d at 180. hold him for ransom or reward; (2) use him as a shield or We disagree. If the evidence is insufficient to sup- hostage; (3) facilitate the commission of a felony or the port Curry's conviction, the remedy is acquittal. That flight after the attempt or commission of a felony; (4) remedy is greater than simply granting Curry a new trial. inflict bodily injury on him or violate or abuse him sex- Curry's sufficiency point of error must be addressed, ually; [**30] (5) terrorize him or a third person; regardless of the fact that he has prevailed on his point of [*405] or (6) interfere with the performance of any error concerning an erroneous amendment of the indict- governmental or political function." 74 The indictment ment. specifically limited the State's allegations to options (4) and (5). So in terms of "setting out the law" as "author- The court of appeals then briefly addressed Curry's ized by the indictment," Curry's hypothetically correct sufficiency point. It held that it was "bound by the theory jury charge would have to instruct the jury that, to find alleged in the indictment as amended." 70 Since the Page 10 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

Curry guilty, they must find that he intentionally or Here, the language at issue is a manner or means of knowingly abducted Williams with the intent to inflict an element of the offense. If the State failed to prove that bodily injury on him, violate or abuse him sexually, or manner or means, then there was an "actual failure in the terrorize him. State's proof of the crime." So under Malik, it follows that this phrase must factor into a sufficiency [**33] 74 TEX. PENAL CODE § 20.04(a). analysis. We conclude that Curry's hypothetically correct jury charge would have instructed the jury to convict In that same vein, the "law" defines two different Curry if it found that he intentionally or knowingly ab- methods of "abduction," but the indictment alleges only ducted Williams with the intent to prevent his liberation one of those methods. So the hypothetically correct jury by using or threatening to use deadly force namely, a charge would have to include the phrase "by using and firearm, on Williams and with intent to inflict bodily threatening to use deadly force namely, a firearm." Cur- injury on Williams or to terrorize Williams or to violate ry's indictment would not "authorize" a conviction on and abuse Williams sexually. less than proof of this element, because this phrase is not surplusage; once alleged, it had [**31] to be proved. Application We next consider whether including that phrase op- We next consider whether the evidence was suffi- erates to "unnecessarily increase the State's burden of cient to convict Curry under this hypothetically correct proof." The indictment charged that Curry abducted Wil- charge. [HN9] [*406] In reviewing the sufficiency of liams with intent to prevent his liberation by using and the evidence, we must view the evidence in the light threatening to use deadly force. Including the phrase "by most favorable to the verdict and determine whether any using and threatening to use deadly force namely, a fire- rational trier of fact could have found the essential ele- arm" in the hypothetically correct jury charge does not ments of the offense beyond a reasonable doubt. 78 We increase the State's burden of proof. Rather, it keeps the resolve inconsistencies in the testimony in favor of the State's burden of proof exactly the same. The State is verdict. 79 simply required to prove what it alleged. In contrast, to delete that phrase from the charge would result in a de- 78 Jackson v. Virginia, 443 U.S. 307, 319, 99 crease in the State's burden of proof. S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Finally, we consider whether inclusion in the jury 79 Moreno v. State, 755 S.W.2d 866, 867 (Tex. charge of the phrase "using and threatening to use deadly Crim. App. 1988). force namely, a firearm" would "adequately describe the [**34] Williams testified that around 8 p.m. Curry particular offense for which [Curry] was tried." The of- put him in a car against his will. He testified that Curry fense for which Curry was tried was aggravated kidnap- beat him up and broke his knee and arm. Though he later ping. An "adequate" description of that offense, again, testified that it was not Curry who took him and beat him must mean an incorporation of the elements of the up, the jury was free to find his initial testimony more charging instrument. Without incorporating those ele- credible. The State impeached Williams' credibility with ments, the offense is not "adequately described." Here, statements he had previously made to the police. The the indictment specifically alleged that [**32] Curry jury could have found that Williams was not an entirely acted "by using and threatening to use deadly force credible witness, but that some portions of his testimony namely, a firearm." So in this case, an "adequate descrip- were true while others were not. tion of the offense" for which Curry was tried would include this manner and means of abduction. Jacobs testified that he saw Curry that same night, getting out of a similar-looking car, and holding a gun. Our conclusion comports with the rationale we ex- He saw Curry shoot and kill someone, then return to the pressed in Malik. There, the trial court charged the jury car. Floyd testified that Curry left their apartment around concerning the legality of the defendant's detention. 75 7 or 8 p.m. and did not return the entire evening. She also We noted that this charge merely related to the admissi- testified that Curry asked her to say that he was with her bility of evidence, not to any "element of the offense." 76 that evening. The evidence also revealed that Curry sus- We explained that a judgment of acquittal should be re- pected that Williams was involved in the burglary of his served for those instances in which there is an "actual home. Although Curry and McCalep testified that Curry failure in the State's proof of the crime." 77 was at the apartment the entire evening, the jury was free to believe Floyd and disbelieve Curry and McCalep. 75 953 S.W.2d at 235, 240. 76 Id. at 240. Based on this testimony, the jury could reasonably 77 Ibid. [**35] have believed that Curry restricted Williams's movement without his consent and that Curry intended to Page 11 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **

inflict bodily injury on Williams or terrorize him. The jury could have believed that Curry had a motive, in that DISSENT the jury could have believed that Curry wanted revenge Johnson, J., filed a dissenting opinion, in which against Williams for the break-in. The jury also could Meyers, J., joined. have believed that Curry asked Floyd to lie for him be- cause he had violated the law that evening. DISSENTING OPINION The only remaining question is whether the jury ra- I agree with the majority that once the state alleged tionally could have found that Curry restrained Williams aggravated kidnapping "by using and threatening to use with intent to prevent his liberation "by using or threat- deadly force namely, a firearm," it was required to prove ening to use deadly force namely, a firearm." We believe that allegation. I also agree that the sufficiency of the the jury could have reached this conclusion. [HN10] An evidence must be analyzed using this allegation. Howev- abduction is a continuous, ongoing event. 80 There is no er, I respectfully dissent from the final disposition time limit for an abduction. 81 So the abduction did not cease once Williams was put in the car. It continued In the instant case, the court of appeals concluded that throughout the entire time he was in the car until he was the hypothetically-correct jury charge did not include the released in the warehouse district. Since Jacobs testified phrase "by using and threatening to use deadly force that he saw Curry with a gun that night, the jury could namely, a firearm, on the Complainant." Curry v. State, 1 have believed that Curry had that gun and used it during S.W.3d 175, 180-81 (Tex. App.--El Paso 1999). The ma- the course of the abduction to prevent Williams' libera- jority finds that this was error, and that the hypothetical- tion. In addition, since Williams' credibility was [**36] ly-correct jury charge would include this phrase. Ante, impeached by the State, the jury was free to disbelieve 30 S.W.3d 394, 405. Thus, the court of appeals [**38] Williams' testimony that Curry did not have a gun and is found to have applied the wrong standard in its suffi- that Curry did not threaten him. The jury reasonably ciency analysis. The majority then performs its own suf- could have believed that Williams denied these things at ficiency analysis using the proper hypothetically-correct trial because he was afraid of retribution from Curry. jury charge. Ante, 30 S.W.3d 394, 404. 80 Weaver v. State, 657 S.W.2d 148, 150 (Tex. Such action is inconsistent with our precedents See, Crim. App. 1983). e.g., Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. 81 Ibid. App. 1997) (judgment of court of appeals vacated and cause remanded for that court to apply correct standard We deem the evidence sufficient for a rational jury of review in analyzing sufficiency of the evidence); to find that the State proved all the elements of the of- Curry v. State, 975 S.W.2d 629 (Tex. Crim. App. 1998) fense beyond a reasonable doubt. (judgment of court of appeals vacated and cause re- manded for reconsideration of defendant's sufficiency CONCLUSION claim in light of Malik); Blanco v. State, 962 S.W.2d 46 We conclude that the phrase "by using and threaten- (Tex. Crim. App. 1998) (judgment of court of appeals ing to use deadly force namely, a firearm" was not sur- vacated and cause remanded for reconsideration in light plusage. The trial court erroneously permitted the State of Malik). As we have previously stated, our jurisdiction to delete this allegation over Curry's objection after trial is limited to review of decisions by the courts of appeals. had begun. The court of appeals has determined that this Garcia v. State, 15 S.W.3d 533, 536-37 n.5 (Tex. Crim. error [*407] harmed Curry, and we did not grant re- App. 2000); see also TEX. CODE CRIM. PROC. 4.04, § view of that issue. We therefore affirm the court of ap- 2; TEX. R. APP. P. 66.1. Because the court of appeals peals' holding which grants Curry a new trial. did not apply the appropriate [**39] sufficiency analy- sis, the majority's application of the appropriate standard We also find that Curry's hypothetically correct jury is not a review of the court of appeals' decision; it is an charge would [**37] have included the "deadly force" application of that standard in the first instance. We phrase, and that the evidence was sufficient to convict should remand this cause and allow the court of appeals Curry under such a charge. We affirm, albeit for different to conduct the appropriate sufficiency analysis. To do reasons, the court of appeals' holding that the evidence otherwise is beyond our authority. was sufficient to convict. Johnson, J. DATE DELIVERED: September 20, 2000 Date delivered: September 20, 2000 DISSENT BY: Johnson Page 1

JIMMIE FIELDS, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-93-00283-CR

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

932 S.W.2d 97; 1996 Tex. App. LEXIS 1372

March 31, 1996, delivered March 31, 1996, filed

SUBSEQUENT HISTORY: [**1] Appellant's consent to search. The court also found that certain evi- Petition for Discretionary Review Refused September dence was seizable under the plain view exception to the 18, 1996. Released for Publication November 15, 1996. warrant requirement because the officer was lawfully in the vehicle and it was immediately apparent that the evi- PRIOR HISTORY: APPEAL FROM THE 8TH dence was seizable evidence of a crime. JUDICIAL DISTRICT COURT OF HOPKINS COUNTY, TEXAS. OUTCOME: The appellate court affirmed appellant's conviction for possession of more than 400 grams of DISPOSITION: Affirmed. cocaine. The court found that the state proved that ap- pellant exercised care, custody, control, or management CASE SUMMARY: over the cocaine found in the vehicle he was occupying, and that appellant knew that the substance was cocaine and, therefore, the evidence was legally sufficient to PROCEDURAL POSTURE: Appellant challenged his support the conviction. conviction, entered by the 8th Judicial District Court, Hopkins County (Texas), for aggravated possession of LexisNexis(R) Headnotes more than 400 grams of cocaine.

OVERVIEW: Appellant was convicted of aggravated possession of more than 400 grams of cocaine. The jury Criminal Law & Procedure > Criminal Offenses > assessed punishment at life imprisonment and a fine. Controlled Substances > Possession > General Over- Appellant raised numerous points of error on appeal. The view appellate court rejected appellant's contentions and af- [HN1] See Tex. Health & Safety Code Ann. § 481.115 firmed his conviction. The court found that the evidence (Supp. 1993). was legally sufficient to support the conviction, that the state proved that appellant exercised care, custody, con- trol, or management over the cocaine found in the vehi- Criminal Law & Procedure > Criminal Offenses > cle he was occupying, and that appellant knew that the Controlled Substances > Possession > General Over- substance was cocaine. The court further found that the view trial court properly denied appellant's motion to suppress [HN2] Possession is defined in Tex. Health & Safety evidence because the officer had reasonable suspicion to Code Ann. § 481.002(38) (Supp. 1993) as meaning actual stop appellant and did not exceed the scope of appellant's care, custody, control or management of the contraband. Page 2 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

Criminal Law & Procedure > Appeals > Standards of Criminal Law & Procedure > Pretrial Motions & Pro- Review > Substantial Evidence > General Overview cedures > Suppression of Evidence Evidence > Procedural Considerations > Exclusion & Criminal Law & Procedure > Appeals > Standards of Preservation by Prosecutor Review > Abuse of Discretion > General Overview [HN3] In reviewing the legal sufficiency of the evidence, [HN6] The appellate court must view the evidence of- the appellate court must examine all of the evidence in fered at a suppression hearing in the light most favorable the light most favorable to the verdict to determine to the trial court's ruling. The trial judge is the sole and whether a rational trier of fact could have found the es- exclusive factfinder at a hearing on a motion to suppress. sential elements of the offense beyond a reasonable On appeal, the court does not engage in its own factual doubt. The standard of review is the same for both direct review but decides whether the trial court's fact findings and circumstantial evidence, and the state need not ex- are supported by the record. If the findings are so sup- clude every reasonable hypothesis other than the de- ported, the court is not at liberty to disturb the trial fendant's guilt. court's findings, and, on review, the court addresses only the question of whether the trial court improperly applied the law to the facts. The totality of the circumstances Criminal Law & Procedure > Criminal Offenses > must be considered in determining whether the trial Controlled Substances > Possession > Simple Posses- court's findings are supported by the record, and those sion > Elements findings will not be disturbed absent a clear abuse of Criminal Law & Procedure > Trials > Burdens of discretion. If the trial court's decision is correct on any Proof > Prosecution applicable theory of law, it will be sustained. [HN4] In order to establish the unlawful possession of a controlled substance, the state must prove that the de- fendant (1) exercised care, control, or management over Criminal Law & Procedure > Search & Seizure > the contraband, and (2) knew what he possessed was Warrantless Searches > Investigative Stops contraband. To establish control and knowledge of the [HN7] Law enforcement officers are permitted to ask cocaine, the state must prove more than that the defend- questions of citizens. If the questioning results in a de- ant was merely in the vicinity of the controlled sub- tention, it must have been supported by reasonable sus- stance; it must provide "affirmative links" between the picion. This reasonable suspicion must be based upon accused and the contraband, i.e., facts and circumstances articulable facts suggesting that criminal activity may be in addition to mere presence that raise a reasonable in- taking place. In other words, there must be some level of ference of the accused's knowledge and control of the objective justification for making the stop beyond a mere contraband. "hunch."

Criminal Law & Procedure > Criminal Offenses > Criminal Law & Procedure > Jury Instructions > Par- Controlled Substances > Possession > General Over- ticular Instructions > Reasonable Doubt view Criminal Law & Procedure > Jury Instructions > Re- [HN5] A variety of factors may link an accused to con- quests to Charge traband; these include whether the contraband: (1) was in Evidence > Procedural Considerations > Exclusion & plain view; (2) was conveniently accessible to the ac- Preservation by Prosecutor cused; (3) was in a place owned by accused; (4) was in a [HN8] Tex. Code Crim. Proc. Ann. art. 38.23 prohibits car driven by accused; (5) was found on the same side of the admission of any evidence obtained in violation of the car as accused; (6) was found in an enclosed space; the accused's rights and requires that in any case where or (7) emitted an odor. Additional links include whether: the legal evidence raises an issue under the rule, the jury (8) paraphernalia to use the contraband was in view of or shall be instructed that if it believes, or has a reasonable found on the accused; (9) conduct of the accused indi- doubt, that the evidence was obtained in violation of the cated a consciousness of guilt; (10) the accused had a provisions of the article, then and in such event, the jury special relationship to the contraband; (11) occupants of shall disregard any such evidence so obtained. Where a the automobile gave conflicting statements about rele- reasonable suspicion arises from articulable facts, an vant matters; (12) the physical condition of the accused officer is permitted to make a temporary investigation indicated recent consumption of the contraband found in detention. Where the facts relied upon by the state are the car; and (13) affirmative statements connect the ac- uncontroverted, their sufficiency is a question of law for cused to the contraband. the court. Page 3 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

Criminal Law & Procedure > Trials > Closing Argu- Criminal Law & Procedure > Search & Seizure > Gen- ments > Fair Comment & Fair Response eral Overview Criminal Law & Procedure > Appeals > Reversible Criminal Law & Procedure > Juries & Jurors > Prov- Errors > General Overview ince of Court & Jury > General Overview [HN14] The four areas of acceptable jury argument are: Criminal Law & Procedure > Jury Instructions > Par- (1) summation of the evidence, (2) reasonable deduction ticular Instructions > Use of Particular Evidence from the evidence, (3) answer to argument of opposing [HN9] The trial court is required by Tex. Code Crim. counsel, and (4) plea for law enforcement. For error to be Proc. Ann. art. 38.23 to instruct the jury to disregard any reversible, the comment, viewed in light of the record as evidence illegally obtained when there is a fact issue as a whole, must be extreme or manifestly improper, viola- to the legality of the search and seizure. tive of a mandatory statute or must inject into the trial new facts harmful to the accused. In arriving at its deci- sion, an appellate court is to determine whether there is a Criminal Law & Procedure > Search & Seizure > reasonable possibility that the comment made subject of Warrantless Searches > Inventory Searches complaint might have contributed to the conviction or Criminal Law & Procedure > Search & Seizure > the punishment assessed. Warrantless Searches > Plain View [HN10] Evidence will be admissible under the plain view exception provided the evidence establishes that the Criminal Law & Procedure > Trials > Closing Argu- officer was lawfully on the premises, and it was immedi- ments > General Overview ately apparent that evidence was seizable evidence of a Criminal Law & Procedure > Appeals > Reviewability crime. > Preservation for Review > General Overview [HN15] To preserve any error in jury argument for ap- peal, counsel must have asserted a proper objection. Criminal Law & Procedure > Search & Seizure > Moreover, the basis of complaint at trial is the only one Search Warrants > Probable Cause > Personal that may be asserted on appeal. Knowledge Criminal Law & Procedure > Search & Seizure > COUNSEL: MONTSERRAT, ROBERT A. Warrantless Searches > Plain View [HN11] The "immediately apparent" prong of the plain LONG, FRANK. view analysis does not require actual knowledge of in- criminating evidence. The focus is whether the officer JUDGES: RAMEY, TOM (AUTHOR), HOLCOMB, has probable cause to believe that the evidence discov- CHARLES, HADDEN, ROBY ered is associated with criminal activity. OPINION BY: TOM B. RAMEY, JR.

Evidence > Testimony > Experts > General Overview OPINION [HN12] Expert testimony is admissible if it will help the [*100] A jury convicted Jimmie Fields, Jr., jury understand the evidence or determine a fact in issue. ("Fields") of the offense of aggravated possession of Tex. R. Crim. Evid. 702. An expert witness is one who more than 400 grams of cocaine. The jury assessed pun- will testify to matters requiring scientific, technical, or ishment at life imprisonment and a $ 100,000 fine. Fields other specialized knowledge. An expert may be qualified appeals, raising eleven points of error. We will affirm. to speak on such matters by virtue of his knowledge, skill, experience, training, or education. Fields' sixth point of error challenges the legal suffi- ciency of the evidence to support his conviction, and we will address that point first. Fields asserts that the evi- Evidence > Relevance > Relevant Evidence dence was insufficient because the State did not prove Evidence > Scientific Evidence > Toxicology that he exercised care, custody, control or management [HN13] The Texas Rules of Criminal Evidence define over the cocaine found in the vehicle he was occupying, relevant evidence as evidence having any tendency to nor that he knew that the substance was cocaine. make the existence of any fact that is of consequence to the determination of the action more probable than it Trooper Bruce Roberts ("Roberts"), a 19 year veter- would be without the evidence. Tex. R. Crim. Evid. 401. an with the Texas Department of Public Safety ("DPS"), testified that on the afternoon of March 15, 1993, as he entered the ramp [**2] onto Interstate 30 ("I-30"), a Page 4 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

beige/gold Lincoln Continental Towncar passed him at a tance and placed Johnson under arrest for driving while high rate of speed. Roberts, who was driving his DPS license suspended. Shortly thereafter, Trooper Jeff vehicle and accompanied by citizen observers Frank Bell Maeker arrived, and Roberts informed him that he be- and his niece, pursued the Lincoln. He clocked it at 61 lieved the occupants were transporting drugs in the Lin- miles per hour in a 50 mile per hour zone where con- coln. Roberts explained to Maeker that Johnson had been struction was in progress. Once through the construction acting extremely nervous, was shifting his weight from area, Roberts activated his overhead flashing lights and one side to the other, and would not look at him. Roberts signalled the Lincoln to stop, which it did. As Roberts stated, however, that Johnson said there were no drugs in exited his vehicle, he noticed that [*101] the Lincoln the Lincoln and that they could search the car if they bore an Avis rental car sticker and that there were two wanted to. people in the vehicle. Roberts approached the driver, Roberts then informed Fields as to why they had ar- later identified as Larry Johnson ("Johnson"), and asked rested Johnson. He also asked Fields where they had to see his driver's license; instead, Johnson handed him a been. Fields told Roberts that they had been [**5] in "Malibu Gran Prix" racing license. When Roberts asked Grand Prairie looking for a site for his home. He then him if he had a valid driver's license, Johnson appeared attempted to show Roberts a set of plans. When asked if nervous, moved his head around a lot, and stated that he there were any drugs in the car, Fields replied "no" and had one but he was not sure where it was. Johnson then invited Roberts to search the Lincoln. When further conducted a cursory search between the seats and back-up support arrived, Roberts informed Fields and reached for the glove box, explaining that he was looking Johnson that he suspected that they were carrying drugs, for his license. As Roberts waited, he noted that there and they would take the Lincoln to the Hopkins County's was no luggage in the car's interior. Unable to find his Sheriff's Office to search it. Neither suspect protested. [**3] license in the glove box, Johnson began to look for it in the trunk. Roberts accompanied him to the rear Bell then drove the Lincoln to the Sheriff's office of the car. Upon opening the trunk, Roberts observed where he and Trooper Boggs stayed with the vehicle three items: a small sports bag, a garment bag, and a pair while Roberts went with the vehicle occupants inside the of silver-tipped boots. Johnson then began rifling office. While Roberts was inside, he was notified by an- through the sports bag. With regard to Johnson's search other officer that drugs had been found under the hood of of the first bag, Roberts testified: "Again, he was looking the Lincoln. Roberts then went into the sally port, where in it real rapidly. I don't see how he could have found he was handed a bag that had been removed from the anything if it was in there. He went through it real fast." hood of the vehicle and which contained State's exhibits Next, Johnson opened the garment bag which he stated 1-A, 1-B and 1-C. At trial, Roberts identified State's ex- belonged to the passenger, Fields. When Roberts asked hibit 2 as the same bag that had been removed from the him why his license would be in the passenger's garment Lincoln on March 15, 1993. Roberts also identified bag, Johnson grew visibly more nervous. State's several exhibits as items found inside the Lincoln during an inventory search. Johnson never found his license, so at Roberts' re- quest, Bell, who had accompanied Roberts, took down Exhibit 13, a container of air freshener, was identi- Johnson's correct name and date of birth. Roberts testi- fied as an [**6] item Roberts found under [*102] the fied, however, that because Johnson was so nervous and seat of the car the day following the arrests. With regard stuttering so badly, it took Roberts quite awhile to get to that exhibit, Roberts testified that because the Lincoln Johnson's correct name and date of birth from him. Rob- was to be picked up by the rental company, he had to erts stated that it was obvious to him that something was determine that all of the parties' belongings had been wrong. When asked from where they had been travelling, retrieved from the vehicle. These items consisted of two Johnson informed Roberts that they had been in Grand beepers--one of which may not have been in Roberts' Prairie, [**4] Texas, for five days helping Johnson's possession--two pagers which he already had in his pos- uncle level a house. Roberts then approached Fields who session, a radar detector, luggage and a pair of boots. He produced a Tennessee Driver's License correctly identi- further stated that in checking the vehicle's interior, he fying him as Jimmie Fields, Jr. When asked, Fields in- found the container of air freshener under the passenger's formed Roberts that his girlfriend had rented the Lincoln seat which had been occupied by Fields and which had for them. not been listed on the vehicle inventory form. Roberts thus testified that he retrieved the air freshener and pos- After talking with Fields, Roberts returned to his pa- sibly one of two beepers that had been listed on the in- trol vehicle to run computerized driver's license and ventory along with the parties' luggage and boots. Rob- criminal history checks on both men. From these inquir- erts stated that because the duffle bag of drugs found ies, Roberts learned that Fields' driver's license had been under the hood had emitted a strong perfume smell, he suspended; consequently, he called for back up assis- Page 5 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

deduced that the air freshener was the scent used to mask would sell for approximately $ 60,000 wholesale in the the drugs' odor and was thus evidence in the case. Northeast Texas area. He further testified that at retail prices, that amount of cocaine would sell for as much as On cross-examination, Roberts testified that neither $ 900,000 on the street. scales nor other drug paraphernalia was found [**7] in the Lincoln, and neither suspect attempted to escape. Allen testified that through his work, he was familiar Moreover, he testified that while Johnson was shaking with the patterns and activities of people who transported quite a bit, it was cold and misty outside while he was narcotics. He then testified that characteristically, such questioning the occupants. people: (1) do not drive vehicles registered to them; (2) are deceptive as to their destination and the length of Frank Bell, a citizen who often rode with Roberts on time they will be travelling; (3) carry an inadequate patrol, testified that after the arrest, at Roberts' direction, quantity of clothing for the number of occupants in the he drove the Lincoln to the sally port of the Hopkins vehicle and their projected stay; (4) generally [*103] County Jail. Bell testified that he neither put anything in display wealth while their stated employment would not nor took anything out of the Lincoln, but he stated that support such wealth; (5) are generally very friendly; and he was present when the drugs were found under the (6) carry electronic pagers. On cross-examination, how- hood of the Lincoln. ever, Allen admitted that hundreds of thousands of peo- Ricky Jones, the canine narcotics officer for the ple who are not drug traffickers drive rented vehicles and Franklin County Sheriff, testified that on March 15, carry pagers. He further testified that he had no personal 1993, the Hopkins County Sheriff's office requested his knowledge [**10] as to whom the cocaine in evidence assistance. In response to that request, he and Marko, the here belonged. Additionally, Allen testified that drug narcotics detection dog under his supervision, went to the traffickers often carry a lot of money with them. Hopkins County Sheriff's department. Upon their arrival, As its last witness, the State re-called Trooper Bruce they were directed to the sally port to conduct a narcotics Roberts. On re-direct examination, Roberts testified that search on a 1990 Lincoln. Marko, who is trained to de- Johnson informed him that he worked as a clerk for J & tect the odor of marijuana and cocaine, "alerted" on the S Grocery. Following Roberts' testimony, the State rested Lincoln at the area between the front tire and fender. In its case. Thereafter, Fields moved for an instructed ver- response to the dog's reaction, Jones opened the Lin- dict based upon insufficient evidence. After hearing ar- coln's hood and discovered a [**8] purple duffle bag, guments on the motion, the trial court denied the motion, which had been placed on top of the engine. Inside the and the parties closed the evidence. The case was there- duffle bag were two white towels, three packages of a after submitted to the jury on the court's charge, which substance and then another towel between them. Jones contained instructions on the law of parties. took the bag into his custody, borrowed a knife and stuck it into one of the packages. When he extracted the knife, The offense of aggravated possession of cocaine is it was covered with a white powdery residue. Several set forth in TEX. HEALTH & SAFETY CODE § 481.115 pictures of the packages and duffle bag were taken. Then (Vernon Supp. 1993). That section provides: Jones and another officer took the packages into the Sheriff's office, weighed each and marked its weight on [HN1] (a) Except as authorized by this the outside of the package. He then returned the packag- chapter, a person commits an offense if es to the container and took more photographs. After- the person knowingly or intentionally wards, Jones placed the packages in Roberts' custody. possesses a controlled substance listed in Following this testimony, Jones identified State's exhib- Penally Group 1, unless the person ob- its 1-A, 1-B, and 1-C as the packages he had removed tained the substance directly from or un- from the purple duffle bag. der a valid prescription or order of a prac- titioner acting in the course of profession- Following Jones' testimony, Karen Shumate, a al practice. chemist with the Texas DPS Crime Lab in Tyler, Texs, identified State's exhibits 1-A, 1-B, and 1-C as the exhib- its she received from Bruce Roberts. Shumate testified ... that after receiving the exhibits, she tested and weighed (c) [**11] A person commits an ag- them, and their combined weight was 3.00 kilograms or gravated offense if the person commits an 6.6 pounds. Shumate further testified that the three ex- offense under Subsection (a) and the hibits [**9] contained 81 percent pure cocaine. amount of the controlled substance pos- As its next witness, the State called Keith Allen, a sessed is, by aggregate weight, including lieutenant with the DPS narcotics service. Allen testified adulterants and dilutants, 28 grams or that based upon his experience, 6.6 pounds of cocaine more. Page 6 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

(d) An offense under subsection (c) was found on the same side of the car as accused; (6) is: was found in an enclosed space; or (7) emitted an odor. Additional links include whether: (8) paraphernalia to use the contraband was in view of or found on the ac- ... cused; (9) conduct of the accused indicated a conscious- (2) punishable by confinement in the ness of guilt; (10) the accused had a special relationship Texas Department of Corrections for life to the contraband; (11) occupants of the automobile gave or for a term of not more than 99 years or conflicting statements about relevant matters; (12) the less than 10 years, and a fine not to ex- physical condition of the accused indicated recent con- ceed $ 100,000, if the amount of the con- sumption of the contraband found in the car; and (13) trolled substance is, by aggregate weight, affirmative statements connect the accused to the con- including adulterants and dilutants, 400 traband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. grams or more. - Houston [1st Dist.], 1994, pet ref'd). In the instant case, the following evidence linked Appellant to the contraband: (1) inasmuch as the Lincoln [HN2] Possession is defined in § 481.002(38) as mean- had been rented by Fields' girlfriend, Bostik, Fields had ing "actual care, custody, control or management" of the had posession of the vehicle for the [**14] preceding contraband. five or more days while Fields & Johnson had been in [HN3] In reviewing the legal sufficiency of the evi- Grand Prairie; (2) the drugs were found concealed be- dence, this Court must examine all of the evidence in the neath the closed hood of the Lincoln, and the hood latch light most favorable to the verdict to determine whether a was controlled from the interior of the car; (3) a can of rational trier of fact could have found the essential ele- air freshener was located under the seat occupied by ments of the offense beyond a reasonable doubt. Jack- Fields, and the air freshener odor matched the scent of son v. Virginia, 443 U.S. 307 at 320, 61 L. Ed. 2d 560, the contraband when found; (4) Fields untruthfully de- 99 S. Ct. 2781, 2789 (1979); Jones v. State, 833 S.W.2d nied his prior drug offenses; (5) Fields and Johnson gave 118, 122 (Tex. Cr. App. 1992), cert denied, 507 U.S. 921, conflicting stories as to their purpose for coming to Tex- 113 S. Ct. 1285, 122 L. Ed. [**12] 2d 678 (1993). The as and activities while in Texas; (6) Fields carried an standard of review is the same for both direct and cir- inadequate amount of clothing for a five day trip; (7) cumstantial evidence, and the State need not exclude Fields exhibited unnatural equanimity and lack of con- every reasonable hypothesis other than the defendant's cern throughout the temporary detention and the subse- guilt. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Cr. quent investigation. App. 1991). Reviewing the evidence in the light most favorable [HN4] In order to establish the unlawful possession to the verdict, we conclude that the evidence presented of a controlled substance, the State must prove that the provided an affirmative link from which the jury could defendant (1) exercised care, control, or management rationally find that Fields had control of the cocaine and over the contraband, and (2) knew what he possessed knew the cocaine was contraband. Accordingly, we was contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex. overrule point of error six. Cr. App. 1986); Hurtado v. State, 881 S.W.2d 738, 743 In his first two points of error, Fields asserts that the (Tex. App. - Houston [1st Dist] 1994, no pet.); Gonzales trial court erred in overruling his motion to suppress the v. State, 809 S.W.2d 778, 780 (Tex. App. - Houston [14th fruits of the search of the Lincoln Towncar [**15] Dist.] 1991, pet ref'd). To establish Field's control and driven by Johnson, in which Fields was the only other knowledge of the cocaine, the State must prove more occupant. In point one, Fields contends that there were than that he was merely in the vicinity of the controlled no facts justifying an investigatory detention of Fields or substance; it must provide "affirmative links" between his arrest. In his second point, Fields asserts that Trooper the accused and the contraband, i.e., facts and circum- Bruce Roberts ("Roberts") exceeded the search consent stances in addition to mere presence that raise a reasona- that Fields gave him. ble inference of the accused's knowledge and control of the contraband. Hurtado, 881 S.W.2d at 743. In Gilbert At the suppression hearing that preceded the com- v. State, 874 S.W.2d 290, the First Court [**13] of Ap- mencement of the guilt/innocence phase of the trial, only peals cataloged [HN5] a variety of factors that may link Roberts was called as a witness. His testimony at the the accused to the contraband; these include whether the suppression hearing tracked his subsequent testimony at contraband: (1) was in plain view; (2) was conveniently the guilt/innocence phase of the trial as previously de- accessible to the accused; (3) was in a place owned by scribed. [*104] accused; (4) was in a car driven by accused; (5) Page 7 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

In our consideration of these points, [HN6] we must other words, there [**18] must be some level of objec- view the evidence offered at the suppression hearing in tive justification for making the stop beyond a mere the light most favorable to the trial court's ruling. Laca "hunch." Howe v. State, 874 S.W.2d 895, 900 (Tex. App. v. State, 893 S.W.2d 171, 176 (Tex. App. - El Paso 1995, - Austin 1994, no pet.). Here, the excessive speed of the pet ref'd). The trial judge is the sole and exclusive fact- car, the apparent extreme nervousness of the driver, his finder at a hearing on a motion to suppress. Romero v. suspended license, Fields' apparent possion of the vehicle State, 800 S.W.2d 539 (Tex. Cr. App. 1990). On appeal, (Fields stated that the overdue rental of the vehicle was we do not engage in our own factual review but decide to his absent girlfriend, Bostik), Roberts' knowledge that whether the trial court's fact findings are supported by (despite Fields' initial denial) Fields had a history of drug the record. Laca, 893 S.W.2d at 177. If the findings are offenses, the travellers' inconsistent versions of their re- so supported, we are not at liberty to disturb [**16] the cent activities, and the total circumstances surrounding court's findings, and, on review, we address only the the vehicle support the less demanding level of suspicion question of whether the trial court improperly applied the required for a temporary detention and the abbreviated law to the facts. Romero, 800 S.W.2d at 543. The total- inquiries of Fields. Fields' first point is overruled. ity of the circumstances must be considered in determin- As to whether Roberts exceeded the alleged consent ing whether the trial court's findings are supported by the to search, the record reflects that Fields' consent followed record, and those findings will not be disturbed absent a his denial that there were any drugs in the Lincoln. It clear abuse of discretion. Dancy v. State, 728 S.W.2d appears that Roberts had informed Fields and Johnson 772, 777 (Tex. Cr. App. 1987), cert. denied, 484 U.S. that he suspected that there were drugs in the Lincoln. 975, 108 S. Ct. 485, 98 L. Ed. 2d 484 (1987). If the trial Fields' oral consent to the search was voluntary, not re- court's decision is correct on any applicable theory of quested by Roberts. In a separate conversation, Johnson law, it will be sustained. Romero, 800 S.W.2d at 543. also offered his consent to search [**19] the Lincoln for Johnson was arrested; he was charged with driving drugs. No DPS written consent form was executed by the Lincoln with a suspended driver's license. Fields was either occupant. Roberts decided to move the Lincoln to not removed, nor did he alight from the Lincoln until the Sheriff's office for the search because the stop had Roberts advised him after the consent to search was been made on an interstate highway in a construction granted that the search of the automobile would be per- area and the weather was inclement. Neither Fields nor formed at the Sheriff's office. Other than the movement Johnson objected to the movement of their vehicle or the of the Lincoln for the search, to which Fields did not place or nature of the search. No limitation upon the object, Fields' liberty or movement was [*105] not search was expressed. Fields' second point of error is restricted or restrained; thus there was no arrest. Amores overruled. v. State, 816 S.W.2d 407, 411 (Tex. Cr. App. 1991). In his third point of error, Fields complains that the Fields [**17] was handcuffed for the purpose of trans- trial court erred in denying his requested jury charge porting him in the DPS vehicle to the Sheriff's office in pursuant to [HN8] Article 38.23 of the TEX. CODE accordance with department policy. Fields was arrested CRIM. PROC., which prohibits the admission of any only after the discovery of the large quantity of contra- evidence obtained in violation of the accused's rights and band under the hood of the Lincoln. There is no dispute requires that: in the record that this handcuffing procedure was re- quired by departmental policy while Fields was in transit In any case where the legal evidence in the DPS vehicle. raises an issue hereunder, the jury shall be Fields complains of the initial stop. The Lincoln had instructed that if it believes, or has a rea- been stopped for the offense of speeding. Most of Rob- sonable doubt, that the evidence was ob- erts' post-stop conversation involved the car's driver, tained in violation of the provisions of this Johnson. [HN7] Law enforcement officers are permitted Article, then and in such event, the jury to ask questions of citizens. Daniels v. State, 718 shall disregard any such evidence so ob- S.W.2d 702, 704 (Tex. Cr. App. 1986), cert. denied, 479 tained. U.S. 885, 107 S. Ct. 277, 93 L. Ed. 2d 252 (1986), over- ruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 (Tex. Cr. App. 1988). If Roberts' questioning result- Where a reasonable suspicion arises from articulable ed in the detention of Fields, it must have been supported facts, an officer is permitted to make a temporary inves- by reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 19 tigation detention. Stone v. [**20] State, 703 S.W.2d n.16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). This rea- 652, 654-55 (Tex. Cr. App. 1986). Where the facts relied sonable suspicion must be based upon articulable facts upon by the State are uncontroverted, their sufficiency is suggesting that criminal activity may be taking place. In Page 8 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

a question of law for the court. Rose v. State, 470 and White v. State, 729 S.W.2d 737, 739 (Tex. Cr. App. S.W.2d 198, 200 (Tex. Cr. App. 1971). 1987), the State sets forth the following three factors that must be satisfied to allow admission of evidence under Fields offered no proof in the case; therefore, though the plain view doctrine: (1) the officer must lawfully be he objected at the suppression hearing to the search and on the premises; (2) the discovery must be "inadvertent"; seizure, he offered no proof that any of the State's evi- and (3) it is "immediately apparent" that the incriminat- dence was obtained in violation of his rights. Neither did ing evidence is seizable as evidence of a crime. Id. It the cross-examination of the State's witness raise a fact then asserts that "inadvertence" is the only factor seri- issue or call into question the validity of the detention or ously challenged by Fields, and argues that the evidence the consent to the search and seizure of evidence. Fields establishes that factor. did not present any evidence [*106] to challenge the State's assertion that the Lincoln was speeding, that While the three-part test of Coolidge served as the Johnson's license was suspended, that the vehicle was standard for admissibility of evidence under the [**23] rented by a third party, Fields' girffriend, which rental plain view doctrine for many years, in 1990, the United agreement had expired, that Fields had a criminal history States Supreme Court modified these criteria by deleting of drug transactions, or that both Fields and Johnson the element of "inadvertence." Horton v. California, 496 consented to the search. U.S. 128, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112 (1990); see State v. Haley, 811 S.W.2d 597, 599 (Tex. Cr. [HN9] The trial court is required by Article 38.23 to App. 1991). Thus, [HN10] the air freshener will be ad- instruct the jury to disregard any evidence illegally ob- missible provided the evidence establishes that Roberts tained when there is a fact issue as to the legality of the was lawfully in the Lincoln, and it was immediately ap- search and seizure. Brooks v. State, [**21] 642 S.W.2d parent that the air freshener was seizable evidence of a 791, 799 (Tex. Cr. App. 1982); Moreno v. State, 916 crime. Id. S.W.2d 654 (Tex. App. - El Paso 1996). Here there is no such question presented by the evidence. Absent some The evidence at trial with regard to Roberts' pres- controversion of some of the critical evidence, the ruling ence in the vehicle showed that after the initial search of the trial court is sustained. Fields' third point of error and inventory of the Lincoln, Roberts had it impounded is overruled. in a secured yard, and he retained its key. Further, it was the local law enforcement officers' policy to leave in- By his fourth point of error, Fields alleges that the ventoried items inside the impounded vehicle. The fol- trial court erred in admitting into evidence over his ob- lowing morning, Roberts contacted the Lincoln's rental jection the can of air freshener found in the Lincoln be- agency, and informed it of the Lincoln's location. The cause Trooper Roberts did not inadvertently find this agency, in turn, informed Roberts that it would send evidence but intentionally went looking for it. Fields someone to obtain possession of the Lincoln that day. claims that because Roberts returned to search the car Because the Lincoln was being released, Roberts went to again 24 hours after it had originally been inventoried the impounded vehicle to locate and remove all personal and searched, and without a warrant or probable cause, effects and belongings from [**24] the vehicle. At that both the search of the vehicle and the seizure of the air time, Roberts had with him a copy of the Lincoln's in- freshener were unreasonable under the Fourth Amend- ventoried contents. Although Fields argues that every- ment. thing Roberts needed from the inventory was contained As his sole authority for this position, Fields cites in the trunk, we cannot disregard Roberts' testimony that Arizona v. Hicks, 480 U.S. 321, 323-24, 107 S. Ct. 1149, department policy was to leave inventoried items in the 94 L. Ed. 2d 347 (1987). In Hicks, an officer seized sto- locked [*107] vehicle, that he believed he may have len stereo equipment found in an apartment during an retrieved an inventoried beeper from inside the vehicle's investigation related to a shot fired from that apartment. interior, and that items other than those originally found The court held that the seizure of the stereo [**22] in the trunk were also contained on the inventory. From equipment, being unrelated to the shooting crime under the evidence presented, we thus hold that Trooper Rob- investigation, was an unlawful seizure. In so holding, the erts discovery of the air freshener inside the Lincoln was court noted that before the plain view doctrine can be lawful. See Haley, 811 S.W.2d at 599. invoked, there must be probable cause to believe that the Having satisfied the first element of Coolidge, we item in question is evidence of a crime. must next determine whether in discovering the air The State, in turn, argues that this was not an un- freshener, it was immediately apparent that Roberts had lawful search of the vehicle and that the plain view doc- discovered evidence of a crime. [HN11] The "immedi- trine was designed to allow the seizure of evidence in ately apparent" prong of the plain view analysis does not this type of scenario. Citing Coolidge v. New Hampshire, require actual knowledge of incriminating evidence. 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. Page 9 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

2d 502 (1983) (reasonable person standard applied to Thus, the fact that he may have later compared [**27] officer's knowledge regarding drugs transported in bal- its odor with that contained in the duffle bag is inconse- loons). "The focus is whether the officer [**25] has quential. 1 probable cause to believe that the evidence discovered is associated with criminal activity." Joseph v. State, 807 1 In response to the State's later question as to S.W.2d 303, 308 (Tex. Cr. App. 1991). whether the odor that "emanated or that comes out of" the air freshener can was the same as that In the instant case, Roberts testified that when the on the towels in the duffle bag, Roberts merely duffle bag from underneath the hood was opened, he answered that it was. Thus, there is even some noticed that it emitted a strong perfume odor. Then, the evidence that the container emanated an odor next day, when Roberts saw the air freshener, he recalled without being sprayed. the strong perfume smell that the duffle bag had emitted and believed that the bag might have been sprayed with Given the facts before us, we hold that the evidence the air freshener found in the Lincoln. Thereafter, he established it was immediately apparent to Roberts that seized the container as evidence. the air freshener was seizable evidence in connection with the posession offense. Fields' fourth point of error is In Hicks, unlike the instant case, on finding the ste- overruled. reo components, the equipment had to be moved and serial numbers had to be checked before it was deter- In his fifth point of error, Fields argues that the trial mined that the equipment had been stolen. Moreover, court erred in overruling his objection to Lieutenant Al- those officers were in the defendant's apartment on an len's testimony as to drug trafficker patterns and charae- unrelated shooting crime. Here, on the other hand, the air teristics because they were not relevant to the instant freshener was seized in connection with the possession case, and even if they were, their prejudicial effect out- crime for which Fields had already been arrested. Joseph weighed any probative value they might have had. is likewise distinguishable from the instant case. In Jo- The State called Keith Allen, a lieutenant with the seph, during execution of a search warrant in connection D.P.S. narcotics service [**28] as an expert [*108] with a case for possession of marijuana, officers seized witness. [HN12] Expert testimony is admissible if it will an [**26] envelope containing a greeting card. On ap- help the jury understand the evidence or determine a fact peal, the court noted that the record was devoid of evi- in issue. TEX. R. CRIM. EVID. 702. An expert witness dence showing that it was immediately apparent to the is one who will testify to matters requiring "scientific, police officer that the greeting card was evidence of a technical, or other specialized knowledge." Id. An expert crime. Only after the officer read the contents of the card may be qualified to speak on such matters by virtue of did he realize its incriminating nature. Joseph, 807 his "knowledge, skill, experience, training, or education." S.W.2d at 309. Consequently, the Court found that the Id. Allen's expertise in the area of investigation of nar- card was the product of an unreasonable search and sei- cotics crimes is not challenged by Appellant. zure. As stated, Allen testified that based upon his expe- Here, unlike Joseph and Hicks, Trooper Roberts rience, 6.6 pounds of cocaine would sell for approxi- connected the air freshener with the duffle bag of cocaine mately $ 60,000 wholesale in the Northesst Texas area, upon discovering it. Fields argues in passing that Roberts and that the same amount would sell for as much as $ had to have sprayed the air freshener before he recog- 900,000 on the street. Allen's testimony as to the value of nized it as evidence. We disagree. At trial, Roberts testi- the cocaine found in the duffle bag under the Lincoln's fied as follows with regard to the air freshener's immedi- hood is not challenged on appeal. Allen also testified, ate connection with the duffle bag: however, that through his work, he was familiar with the patterns and characteristics of people who transport nar- When we retrieved the bag at the Sher- cotics. He then testified over timely objections based on iff's Office, it had a strong smell, a per- relevance and TEX. R. CRIM. EVID. 403 that the fol- fume scent on it. When I saw that [the air lowing characteristics or patterns commonly existed freshener] in the car I thought that is what among "people [**29] who would be traveling with they used to cover the scent. That is quantities" of controlled substances and particularly co- something that is done when people haul caine: they (1) do not drive vehicles registered to them; drugs. They use this to spray on their (2) are deceptive as to their destination and the length of drugs to help mask or cover the scent. time they will be travelling; (3) carry an inadequate quantity of clothing for their projected stay, that often being only one change of clothes between the individuals that occupy the vehicle; (4) generally display wealth Page 10 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

while their stated employment would not support such presence of drugs in an automobile under circumstances wealth; (5) are generally very friendly; and (6) carry like those here was often the result of team work, and electronic pagers. On cross-examination, however, Allen thus, tended to negate the possibility that either code- admitted that hundreds of thousands of people who are fendant was unaware of the contraband's presence under not drug traffickers drive rented vehicles and carry pag- the hood. Accordingly, the trial court did not abuse its ers. He further testified that he had no personal discretion in overruling [*109] Fields' objection as to knowledge as to whom the cocaine in evidence belonged. the relevance of Allen's testimony. Additionally, Allen testified that drug traffickers often A finding of relevance, however, does not end our carry a lot of money with them. inquiry. We must next determine whether under rule 403, [HN13] The TEXAS RULES OF CRIMINAL EV- the probative value of Allen's testimony was outweighed IDENCE define relevant evidence as "evidence having by the danger of unfair prejudice. Fields relies on Stew- any tendency to make the existence of any fact that is of art v. State, 874 S.W.2d 752 (Tex. App. - Houston [1st consequence to the determination of the action more Dist.] 1994, pet. ref'd), to [**32] support his position probable than it would be without the evidence." TEX. that Allen's testimony was highly prejudicial. In Stewart, R. CRIM. EVID. 401. Appellant cites Nelms v. State, the appellant was arrested for possession of a small 834 [**30] S.W.2d 110 (Tex. App. - Houston [1st Dist.] quantity of cocaine found in his motel room. At trial, the 1992, pet. ref'd) in support of his contention that Allen's arresting officer was allowed to testify at length regard- testimony was irrelevant. In Nelms, the appellant was ing his knowledge of drug trafficker conduct allegedly in arrested at a convenience store for posession of cocaine order to establish his expertise regarding street level drug after he was seen dropping two rocks of cocaine beside a trafficking. During his testimony, the officer testified video game. At the time of his arret, the appellant was extensively about the meanings of various drug termi- wearing a pager. At trial, two of the prosecution's wit- nology and the purposes and uses of various types of nesses, repeatedly testified over the appellant's objection drug paraphernalia, some of which was found in the ap- that the appellant was wearing a beeper and that almost pellant's hotel room. 2 On appeal, the court found that the all drug dealers wear beepers. On appeal, the court of officer's "experience dealing with narcotics trafficking appeals held: was relevant to his qualifications as an expert on the use of drug paraphernalia. His testimony about the use of The testimony was inadmissible evi- drug paraphernalia was, in turn, relevant to the showing dence of extraneous criminal conduct un- of knowing possession." Id., at 756. The court, however, der rule 404(b). This evidence invited the concluded that the State had used the wrong line of ques- jury to convict appellant of possession tioning to qualify the officer as an expert: "The State because he was a drug dealer in general? should have qualified Officer Thane as an expert on the The evidence about drug dealing was not usage of drug paraphernalia through testimony about his relevant to any issue in the case and was arrests of suspects for drug possession, [**33] and calculated to prejudice the jury by refen- through testimony of his training and education on the ing to extraneous matters for which ap- subject. It should not have elicited testimony of his expe- pellant was not on trial. We hold it was rience with drug dealers." Id. The court then concluded error to admit the evidence under rule that because the officer's testimony about the drug trade 404(b). may have interfered with the jury's deliberations on guilt, the prejudicial effect of the officer's testimony out- weighed is probative force. Id. Id. at 114. 2 This is but one example of the detailed testi- Nelms is readily distinguishable from the instant mony the State elicited from Officer Thane dur- case. First, the case at bar does not involve a rule 404(b) ing the Stewart trial: objection. Furthermore, [**31] Allen's testimony did not characterize Fields and Johnson as "drug dealers" nor [OFFICER]: A known drug did it lead the jury astray from the issue of possession. dealer is a phrase that we give to a Instead, Allen's testimony succinctly presented various person that has been documented factors common among persons transporting drugs via as a narcotics trafficker or dealer automobile. This testimony coupled with Allen's testi- because of prior convictions of mony on the wholesale and street values of 6.6 pounds of narcotics, arrests or information cocaine was relevant to the issue of the parties' received and documented that he knowledge that the drug was present under the hood. is actually trafficking in narcotics From Allen's testimony, the jury could also glean that the at the present time. Page 11 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

[STATE]: Now, how is crack failing to sustain his objections during closing argument. or rock used? The Court of Criminal Appeals has held that [HN14] the four areas of acceptable jury [*110] argument are: (1) [OFFICER]: Crack cocaine is summation of the evidence, (2) reasonable deduction utilized by inhaling it or smoking from the evidence, (3) answer to argument [**35] of it. The way that it is ingested into opposing counsel, and (4) plea for law enforcement. the body is usually by utilizing a Darden v. State, 629 S.W.2d 46, 52 (Tex. Cr. App. 1982); crack pipe. It is sometimes Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Cr. App. smoked in marijuana cigarettes, 1973). For error to be reversible, the comment, viewed in which is called a 151 or, like, in light of the record as a whole, must be extreme or mani- regular Marlboro cigarettes or festly improper, violative of a mandatory statute or must Kool cigarettes. It can be intro- inject into the trial new facts harmful to the accused. duced into the body that way. Allridge v. State, 762 S.W.2d 146, 155 (Tex. Cr. App. The way it's introduced is it's 1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1176, 103 chipped up in real small pieces. L. Ed. 2d 238 (1989). In arriving at our decision, this Those pieces are put into the ciga- Court is to determine whether there is a reasonable pos- rette or into the crack pipe, and sibility that the comment made subject of complaint then the heat source is applied to might have contributed to the conviction or the punish- it. It turns the crack from the solid ment assessed. Id. form to a liquid form to a gas In his seventh point of error, Fields asserts that the form, and then it's inhaled into the trial court erred in overruling his objection to the State's body, and then it goes from the argument that he had the burden to put on witnesses. The lungs into the bloodstream. prosecutor had argued that an unidentified individual [STATE]: What is a tamping only referred to as "Uncle" could have been called to rod?[OFFICER]: A tamping rod is testify as to what Fields and Johnson had been doing the used--it's usually either a very preceding five days while they were in Dallas. The small stick, a toothpick, a piece of State's reference to "Uncle" was in response [**36] to coat hanger, something that is very Johnson's attorney's argument in which he listed on the small, cylinder in shape, that has blackboard potential witnesses that had not been called got a point on it that can be used to by the State. State's counsel had suggested that the list push down the piece of rock into could have been supplemented by adding "Uncle"; it was the crack pipe. Stewart, 874 not argued that Fields had the burden or obligation to S.W.2d 752 at 754-55. summon this witness. Furthermore, Fields cites no au- thority to support his contention on this point. 3 For these reasons, we conclude there is no merit to the point and it is overruled. [**34] In the instant case, the State presented no such dissertation on drug use or trafficking. Instead, 3 In his brief, Fields' entire presentation on this Lieutenant Allen merely gave brief testimony as to his point is as follows: ten and a half years' employment with the Department of Public Safety and his involvement as Task Force Com- "During the guilt-innocence mander over the Narcotics Task Force Unit, which en- phase of trial, the State argued that forces narcotics laws in Hopkins, Wood, Rains, Camp, the defense had the burden to put Franklin and Titus County. Having reviewed Allen's tes- on witnesses. (SF 375-376). timony, we conclude that the instant case is readily dis- Counsel objected, the objection tinguishable from Stewart, and that the probative value was overruled. (SF 375-376). This of Allen's testimony outweighed any prejudicial effect it is reversible error. might have had. Accordingly, the trial court did not abuse its discretion in admitting the evidence. Having found Allen's testimony both relevant and Fields' eighth point complains that the State im- probative on the issue of knowing possession, we over- properly argued in the punishment phase of the trial that rule Fields' fifth point of error. he was going to multiply the value of the cocaine. The In his seventh, eighth, ninth, tenth and eleventh State's attorney stated: points of error, Fields alleges that the trial court erred in Page 12 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

The law says that you can't have more On appeal, the court found the argument quoted above than four hundred grams [**37] of co- tended to greatly exaggerate the amount of marihuana caine and get less of a sentence than ten found in appellant's possession. It then noted that alt- years. Four hundred grams is less than a hough a "reasonable deduction from the evidence," the pound. These men chose to possess six exaggeration as to quantity and the conclusion that "they point six pounds of cocaine. They could are not only smoking it, but probably giving it away or have chosen not to have any cocaine. selling [**39] it" were not justified by the evidence and They know what the consequences of vi- thus constituted error. olating the laws are. They know that if For obvious reasons, Fields' case is distinguishable you violate the laws of Texas or Tennes- from Turrentine. The argument here contains no exag- see or the Federal Government you get geration and draws no conclusion that Fields intended to punished and you go to prison. But the sell the cocaine. Instead, the State merely deduced from reward was great enough that they took the evidence that since there was a severe penalty for the risk. The reward was great enough to possessing such a large quantity of cocaine, Fields and be in possession of sixty-six thousand Johnson must have been significantly rewarded for dar- dollars worth of cocaine that you can turn ing to possess it. The State was not arguing that Fields into three hundred thousand dollars to and Johnson were going to sell the cocaine themselves nine hundred thousand dollars. for a large profit. The State's argument provides a rea- sonable summation of the evidence of value followed by a reasonable deduction from that evidence. See Layne v. Attorneys for the defense objected to this argument on State, 752 S.W.2d 690, 695 (Tex. App. - Houston [1st the basis that there was no evidence that Fields or John- Dist.] 1988, pet ref'd). Appellant's eighth point of error is son were going to turn the cocaine into that amount of overruled. money. They also asserted that "this is a possession case, not a delivery case." The trial court then overruled the In his ninth point, Fields contends that the State im- objection stating: "All right. The jurors will recall the properly argued: testimony as they recall it to be. Overrule your objec- tions." If you folks want to go home tonight and sleep, if you want to be sleeping fif- On appeal, Fields argues that the State's argument teen years from now or twenty years from was highly inflammatory since this was a possession and now or thirty years from now and know not a delivery case. In support of his position, he cites that Mr. Fields and Mr. Johnson aren't [**38] Turrentine v. State, 536 S.W.2d 219, 220 (Tex. able to be driving up and down the road Cr. App. 1976). In that case, the appellants had been with their cocaine, you [**40] know convicted of possessing 8.15 ounces of marijuana. In what you need to do. Turrentine, during closing argument at the punishment phase, the State commented: The court overruled Fields objection that the argument Now, I don't smoke marihuana and I "puts the jury in the position of a future alleged victim." assume you don't either, and there's no He cites two precedents, both of which involved specific evidence about how much of the stuff it direct victims of the respective offenses. Boyington v. would take to make a marihuana cigarette, State, 738 S.W.2d 704 (Tex. App. - Houston [1st Dist.] but you can call for it and look at it if you 1985, no pet.); Everett v. State, 707 S.W.2d 638 (Tex. Cr. want it. I submit it's a reasonable deduc- App. 1986). No such error is presented in this possession tion from the evidence there's enough ma- case where there is no evidence of a victim at the time of rihuana to make a man and wife high and the offense or in the future. We construe this argument as keep them high until the year 1990. I one for law enforcement. The ninth point is overruled. submit this is more marihuana than this man and wife ever intended for their own By his tenth point of error, Fields asserts that the personal use, and it's a reasonable deduc- following argument was improper: tion from the evidence that they are not only smoking [*111] it but probably You folks have got a hard job to do. Its giving it away or selling it. always hard to send somebody to prison. But did you hear one reason why you shouldn't? Did you hear one single reason why these two shouldn't go to prison? Did Page 13 932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **

anybody's uncle or sister or girlfriend or Defense counsel objected stating: "We will object to the mother -- prosecutor asking for a life sentence in that the commu- nity expects that kind of sentence or that the children of these [*112] jurors will benefit from assessing the On appeal, Fields urges that this argument was improper defendants. We object to that." On appeal, Fields argues in the punishment phase because it suggests that Fields that this is the same type of argument which resulted in a had been abandoned by his family. At trial, however, reversal in Cortez v. State, 683 S.W.2d 419, 420-21 (Tex. Fields objected on the ground that the Defendants were Cr. App. 1984). In Cortez, the State's attorney argued: not [**41] required to call any witnesses and that the "Now, the only punishment that you can assess that State's argument shifted the burden and was contrary to would be any satisfaction at all to the people of the the charge. county would be life [imprisonment]." Id., at 420. [HN15] To preserve any error in jury argument for The instant case is readily distinguishable from appeal, counsel must have asserted a proper objection. Cortez. Here, the State merely argued that if the jurors Green v. State, 682 S.W.2d 271, 295 (Tex. Cr. App. assessed the maximum sentence, they could be assured 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1407, 84 L. that they had made the right decision for themselves, Ed. 2d 794 (1985). Moreover, the basis of complaint at their community and the citizens of this State. Despite trial is the only one that may be asserted on appeal. Fields' counsel's attempt to recharacterize this argument Miller v. State, 566 S.W.2d 614, 619 & 621 (Tex. Cr. through his trial objection as an improper one, the State App. 1978). In the instant case, Field's complaint on ap- did not inappropriately argue the demands and expecta- peal differs from that raised at trial. Consequently, the tions of the community; it simply made a proper [**43] point has not been preserved for review. Point ten is plea for law enforcement. See Luna v. State, 461 S.W.2d overruled. 600, 601 (Tex. Cr. App. 1970) (holding no reversible error in prosecutor's argument that "people that have By his eleventh point of error, Fields alleges that the such ideas in this county in the future will be put on no- trial court erred in overruling his objection to the State's tice that the citizens of this county are not going to put argument at punishment regarding community expecta- up with it"); and Lawson v. State, 896 S.W.2d 828, 833 tion. At the conclusion of the State's closing argument, (Tex. App. - Corpus Christi 1995, pet. ref'd) (holding that the State's attorney argued: argument requesting jury to "send a very strong message to this man and everyone else in this community or Folks, you go upstairs and write down whatever who thinks it's okay to get out there and poison life in that block where it says number of the community with drugs" was proper plea for law en- years and write a hundred thousand dol- forcement). Fields' eleventh and final point of error is lars fine where it says fine, and each and overruled. everyone of you ought to be able to go home tonight knowing what you did was The judgment of the trial court is affirmed. right for yourself, your [**42] family, TOM B. RAMEY, JR. your children, and everybody in this community and across the State. Chief Justice Opinion delivered March 31, 1996. Page 1

JAMES GEORGE GUEVARA, Appellant v. THE STATE OF TEXAS

NO. 0424-03

152 S.W.3d 45; 2004 Tex. Crim. App. LEXIS 1750

October 20, 2004, Delivered

SUBSEQUENT HISTORY: [**1] dence lacked sufficiency in isolation, the consistency of Rehearing denied by In re Guevara, 2005 Tex. Crim. the evidence and the reasonable inferences drawn there- App. LEXIS 50 (Tex. Crim. App., Jan. 12, 2005) from were sufficient to support the verdict. The circum- On remand at, Remanded by Guevara v. State, 2005 stances included his motive, specifically a long-standing Tex. App. LEXIS 10128 (Tex. App. San Antonio, Dec. 7, affair and his right to the wife's substantial retirement 2005) account on her death. He also made several false state- ments to the authorities, took the mistress to a shooting PRIOR HISTORY: ON STATE'S AND APPEL- range for practice, and ensured that he had an alibi for LANT'S PETITIONS FOR DISCRETIONARY RE- the time of the murder. Shell-casing evidence connected VIEW FROM THE FOURTH COURT OF APPEALS. him to the murder weapon. The court reversed the court BEXAR COUNTY. of appeals as to its decision under Tex. R. App. P. 44.2(b) Guevara v. State, 103 S.W.3d 549, 2003 Tex. App. that defendant was harmed by the jury charge, which LEXIS 960 (Tex. App. San Antonio, 2003) included a legal-duty theory, as well as an aiding theory. In applying Tex. R. App. P. 44.2(b), the court of appeals DISPOSITION: Affirmed in part, reversed in part, had relied on a case that dealt with error in the admission and remanded. of evidence. The court explained, however, that error in a criminal jury charge was reviewed under Tex. Code CASE SUMMARY: Crim. Proc. Ann. art. 36.19, as interpreted by the court.

OUTCOME: The court reversed the judgment of the PROCEDURAL POSTURE: Defendant was convicted court of appeals and remanded the case to that court to of murder as a party to the offense, Tex. Penal Code Ann. conduct a harm analysis under the appropriate standard. §§ 7.02(a)(2), 19.02(b). On appeal, the Fourth Court of Appeals, Bexar County, Texas, found that sufficient evi- LexisNexis(R) Headnotes dence supported the verdict, but reversed based on a ju- ry-charge error. Defendant sought further review as to the sufficiency of the evidence, and the State sought fur- ther review as to the harm analysis on the jury-charge Criminal Law & Procedure > Accessories > Aiding & error. Abetting [HN1] The Texas Penal Code provides three separate OVERVIEW: Defendant was convicted as a party to his ways by which a person can be criminally responsible for mistress's murder of his wife based on circumstantial the conduct of another. Tex. Penal Code Ann. § 7.02(a). evidence. The court found that, while each piece of evi- The first way encompasses a situation in which a person Page 2 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

causes an innocent person to engage in criminal conduct. § 7.02(a)(1). The second situation occurs when a person solicits, encourages, directs, aids, or attempts to aid an- Criminal Law & Procedure > Appeals > Standards of other person in committing an offense. § 7.02(a)(2). The Review > Substantial Evidence > General Overview last situation allows a person to be convicted of a crime Evidence > Procedural Considerations > Circumstan- if he does not make a reasonable effort to prevent the tial & Direct Evidence commission of an offense when he has a legal duty to Evidence > Relevance > Circumstantial & Direct Evi- prevent the commission of that offense. § 7.02(a)(3). dence [HN6] Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Circum- Criminal Law & Procedure > Accessories > Aiding & stantial evidence alone is sufficient to establish guilt. Abetting Furthermore, the standard of review on appeal is the [HN2] An appellate court refers to Tex. Penal Code § same for both direct and circumstantial evidence cases. 7.02(a)(2) as the aiding theory of criminal responsibility for the conduct of another. Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview Criminal Law & Procedure > Accessories > Aiding & [HN7] In reviewing the sufficiency of the evidence, an Abetting appellate court should look at events occurring before, [HN3] An appellate court refers to Tex. Penal Code § during and after the commission of the offense and may 7.02(a)(3) as the legal-duty theory of criminal responsi- rely on actions of the defendant which show an under- bility for the conduct of another. standing and common design to do the prohibited act. Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect Criminal Law & Procedure > Trials > Burdens of of all the incriminating facts are sufficient to support the Proof > Prosecution conviction. [HN4] The Fourteenth Amendment's guarantee of due process of law prohibits a criminal defendant from being convicted of an offense and denied his liberty except Criminal Law & Procedure > Appeals > Standards of upon proof sufficient to persuade a rational fact finder of Review > Substantial Evidence > General Overview guilt beyond a reasonable doubt. [HN8] The evidence is sufficient if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances. Criminal Law & Procedure > Jury Instructions > Par- ticular Instructions > Reasonable Doubt Criminal Law & Procedure > Appeals > Reversible Evidence > Procedural Considerations > Circumstan- Errors > Jury Instructions tial & Direct Evidence Evidence > Procedural Considerations > Weight & [HN9] Motive is a significant circumstance indicating Sufficiency guilt. Intent may also be inferred from circumstantial [HN5] In assessing the legal sufficiency of the evidence evidence such as acts, words, and the conduct of the ap- to support a conviction, an appellate court considers all pellant. the record evidence in the light most favorable to the jury's verdict and determines whether, based on that evi- dence and reasonable inferences therefrom, a rational Evidence > Procedural Considerations > Circumstan- jury could have found the accused guilty of all of the tial & Direct Evidence elements of the offense beyond a reasonable doubt. Fur- [HN10] Attempts to conceal incriminating evidence, thermore, when the trial court's charge authorizes the inconsistent statements, and implausible explanations to jury to convict on more than one theory, the verdict of the police are probative of wrongful conduct and are also guilty will be upheld if the evidence is sufficient on any circumstances of guilt. Lies about an actor's relationship one of the theories. The law does not require any further with an accomplice are probative of unlawful acts. speculation as to the guilt of the appellant. If, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt as to the defendant's guilt, the due pro- Criminal Law & Procedure > Accessories > Aiding & cess guarantee requires that the court reverse and order a Abetting judgment of acquittal. Page 3 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

[HN11] The Texas Penal Code does not require that a 19.02(b). And we hold that the correct standard of review party actually participate in the commission of the of- for jury-charge error is Article 36.19 of the Code of fense to be criminally responsible. The Penal Code also Criminal Procedure. [**2] We therefore affirm the does not require that a party to the crime be physically Court of Appeals on the former issue and reverse on the present at the commission of the offense. latter. I. Facts and Procedural Background Criminal Law & Procedure > Appeals > Standards of On May 26th, 1993, Minnie Salinas, the appellant's Review > Substantial Evidence > General Overview mistress, shot and killed Velia Guevara, the appellant's Evidence > Procedural Considerations > Weight & wife. Sometime before 9:00 a.m., Kathleen Cadena, the Sufficiency property manager at the appellant's apartment complex, [HN12] When multiple theories are submitted to a jury, received a call from an answering service, which report- the evidence is sufficient to support a conviction so long ed several calls about a car with its lights on that be- as the evidence is sufficient to support conviction for one longed to the tenant in apartment 424, the appellant's of the theories submitted to the jury. apartment. At 9:00 a.m., Cadena received another similar call, and Shelley Selzor, the leasing agent, took another call about fifteen minutes later. Cadena told Selzor to Criminal Law & Procedure > Jury Instructions > Ob- contact Velia. jections Cadena said a woman, later identified as Minnie Sa- Criminal Law & Procedure > Jury Instructions > Par- linas, came by the office at about 8:45 a.m. The office ticular Instructions > Use of Particular Evidence was not yet open, so the woman returned between 9:15 Criminal Law & Procedure > Appeals > General Over- and 9:30 a.m. The woman asked to use the phone. Ca- view [HN13] It is settled law in Texas that error in a criminal dena offered the office phone, but the woman asked for a jury charge is reviewed under Tex. Code Crim. Proc. pay phone. Cadena directed the woman to the pay phone Ann. art. 36.19. at the back of the club house. The woman was gone for a short time, and then came back through the leasing office COUNSEL: For APPELLANT: Nancy B. Barohn, San without stopping. George Garza, the maintenance man, Antonio, TX. also recalled [**3] seeing the woman. At about 10:00 a.m., Velia came to the leasing office to say her car lights For STATE: Daniel Thornberry, ASSIST. DA, San An- were not on. That was the last time she was seen alive. tonio, TX. The appellant had left the apartment early that morning and played golf until about 1:00 or 2:00 p.m. JUDGES: PRICE, J., delivered the opinion of the court, Then he spent the next three hours at the San Antonio in which KELLER, P.J., and MEYERS, WOMACK, Light career services office pursuing prospective em- JOHNSON, KEASLER, HOLCOMB, and COCHRAN, ployment opportunities. At about 4:00 p.m., he returned JJ., joined. HERVEY, J., did not participate. to his apartment, where he found his wife inside the apartment, lying dead on the hallway floor. OPINION BY: PRICE During the trial, there was no dispute by either the OPINION appellant or the State that Salinas was the principal actor in the commission of the murder. There was also no dis- [*46] PRICE, J., delivered the opinion of the pute that the appellant had an alibi for the time when court, in which KELLER, P.J., and MEYERS, Velia was shot. Since the appellant had an alibi for the WOMACK, JOHNSON, KEASLER, HOLCOMB, time of the murder, the State had to prove that he was and COCHRAN, JJ., joined. HERVEY, J., did not criminally responsible for Salinas's actions in committing participate. the murder. The appellant challenges his conviction for murder, [HN1] The Texas Penal Code provides three sepa- claiming that the evidence presented [*47] at trial was rate ways by which a person can be criminally responsi- insufficient to support his conviction as a party to the ble for the conduct of another. 1 The first way encom- offense. The State challenges the judgment of the Court passes a situation in which a person causes an innocent of Appeals with respect to the Court's harm analysis on person to engage in criminal conduct. 2 The second situa- jury-charge error. We conclude that the evidence was tion occurs when a [**4] person "solicits, encourages, legally sufficient to support the appellant's conviction directs, aids, or attempts to aid" another person in com- under Texas Penal Code Sections 7.02(a)(2) and mitting an offense. 3 The last situation allows a person to Page 4 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

be convicted of a crime if he does not make a reasonable The Court of Appeals determined that the harm effort to prevent the commission of an offense when he analysis should be conducted under Texas Rule of Ap- has a legal duty to prevent the commission of that of- pellate Procedure 44.2(b). Under Rule 44.2(b), a fense. 4 non-constitutional error must be disregarded unless it affects a defendant's substantial rights. Using this analy- 1 TEX. PEN CODE § 7.02(a). sis, the Court of Appeals determined that the submission 2 TEX. PEN. CODE § 7.02(a)(1). of the legal-duty theory [**7] affected appellant's sub- 3 TEX. PEN. CODE § 7.02(a)(2). [HN2] We stantial rights, and therefore remanded the case for a new refer to this section as the "aiding" theory of trial. criminal responsibility for the conduct of another. We granted both the State's and the appellant's peti- 4 TEX. PEN. CODE § 7.02(a)(3). [HN3] We tions for discretionary review to determine (1) whether refer to this section as the "legal-duty" theory of the evidence presented was sufficient to support the ver- criminal responsibility for the conduct of another. dict, (2) whether the Court of Appeals applied the correct [*48] The State relied on Section 7.02(a)(2) of the harm analysis to the jury-charge error, and, if so, (3) Penal Code to show that the appellant was criminally whether the Court of Appeals erred in holding that the responsible for Salinas's actions in murdering Velia. The appellant was harmed. 7 State's theory of the case was that Salinas and the appel- lant together plotted [**5] to kill Velia. 7 The precise grounds upon which we granted review include whether the court of appeals erred There was no evidence presented at trial that sug- by: (1) performing a harm analysis of jury-charge gested the State relied on the legal-duty theory to find the error by applying Rule 44.2(b) of the Rules of appellant to be criminally responsible in the death of his Appellate Procedure instead of Article 36.19 of wife. However, in the abstract portion of the jury charge, the Code of Criminal Procedure, as construed by the party-liability instruction included both the aiding Almanza v. State; (2) reversing appellant's con- language from Section 7.02(a)(2) and the legal-duty lan- viction because the jury might have convicted guage from Section 7.02(a)(3). From the record, it ap- appellant on one erroneous theory of the offense pears that neither the appellant nor the State requested or where there was sufficient evidence to sustain the objected to the inclusion of the legal-duty language in the conviction under an alternative theory; and (3) charge. finding that the State's evidence was legally suf- On direct appeal, the appellant challenged, inter alia, ficient to support appellant's conviction where the legal sufficiency of the evidence and the inclusion of legal sufficiency necessarily depended upon a the legal-duty language in the jury charge. The appellant theory of conduct that was not unlawful or, alter- argued that the inclusion allowed the jury to convict him natively, upon the impermissible stacking of in- for conduct that was not illegal since he had no legal ferences. duty to prevent the murder of his wife, and moreover, the misstatement of the law deprived him of a fair and im- [**8] II. Legal Sufficiency of the Evidence partial trial. First, we address the appellant's assertion that the The Court of Appeals held the evidence presented at evidence was legally insufficient to support the convic- trial was legally sufficient to convict the appellant on the tion due to the impermissible stacking of inferences, aiding theory of being a party to an offense. 5 Therefore, [*49] or alternatively, because the conviction rested on the Court declined to address the sufficiency of the evi- conduct which was not illegal. 8 dence under a legal-duty [**6] theory of liability. 8 If the evidence is insufficient to sustain the 5 Guevara v. State, 103 S.W.3d 549, 555 (Tex. conviction, then we need not address the other App.-San Antonio 2003). issues presented in the State's petition for discre- tionary review. In addressing the jury-charge error, the Court of Appeals initially found it to be harmless. However, on A. Standard of Review the appellant's motion for rehearing, the Court of Ap- peals en banc held that the error was harmful based on its [HN4] The Fourteenth Amendment's guarantee of due opinion in Bagheri v. State. 6 process of law prohibits a criminal defendant from being convicted of an offense and denied his liberty except 6 87 S.W.3d 657 (Tex. App.-San Antonio upon proof sufficient to persuade a rational fact finder of 2002), aff'd, 119 S.W.3d 755 (Tex. Crim. App. guilt beyond a reasonable doubt. 9 [HN5] In assessing the 2003). legal sufficiency of the evidence to support a conviction, Page 5 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

we consider all the record evidence in the light most fa- the guilt of the appellant, as long as the cumulative effect vorable to the jury's verdict and determine whether, of all the incriminating facts are sufficient to support the based on that evidence and reasonable inferences there- conviction. 17 from, a rational jury could have found the accused guilty [**9] of all of the elements of the offense beyond a 16 Cordova v. State, 698 S.W.2d 107, 111 reasonable doubt. 10 Furthermore, when the trial court's (Tex. Crim. App. 1985); Thompson v. State, 697 charge authorizes the jury to convict on more than one S.W.2d 413, 416 (Tex. Crim. App. 1985). theory, as it did in this case, the verdict of guilty will be 17 Alexander v. State, 740 S.W.2d 749, 758 upheld if the evidence is sufficient on any one of the (Tex. Crim. App. 1987); Russell v. State, 665 theories. 11 The law does not require any further specula- S.W.2d 771, 776 (Tex. Crim. App. 1983) [HN8] tion as to the guilt of the appellant. If, given all of the (The evidence is sufficient "if the conclusion [of evidence, a rational jury would necessarily entertain a guilt] is warranted by the combined and cumula- reasonable doubt as to the defendant's guilt, the due pro- tive force of all the incriminating circumstanc- cess guarantee requires that we reverse and order a es."). judgment of acquittal. 12 [HN9] [*50] Motive is a significant circumstance indicating guilt. 18 Intent may also be inferred from 9 In re Winship, 397 U.S. 358, 362, 25 L. Ed. [**12] circumstantial evidence such as acts, words, and 2d 368, 90 S. Ct. 1068 (1970). the conduct of the appellant. 19 10 Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Ladd v. 18 Harris v. State, 727 S.W.2d 537, 542 (Tex. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). Crim. App. 1987). 11 Rabbani v. State, 847 S.W.2d 555, 558 19 Patrick v. State, 906 S.W.2d 481, 487 (Tex. (Tex. Crim. App. 1992). Crim. App. 1995). 12 Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992) (emphasis added). The evidence demonstrated that the appellant had a motive to kill his wife. The appellant was involved in a [**10] B. The Aiding Theory long-standing affair with Salinas, which was consum- The appellant contends that the evidence was legally mated three days before he married Velia. Three years insufficient to convict him due to the impermissible after the affair began, and one month before the murder, stacking of inferences. The evidence used to convict the Salinas issued an ultimatum to the appellant that they appellant was solely circumstantial. However, the lack of would separate "if something didn't happen by June." direct evidence is not dispositive of the issue of a de- The appellant was distressed over this, and stated that he fendant's guilt. [HN6] Circumstantial evidence is as pro- "didn't want to give Minnie [Salinas] up and couldn't bative as direct evidence in establishing the guilt of an think of a way to end it." The appellant apparently did actor. 13 Circumstantial evidence alone is sufficient to not want to divorce Velia because he did not want to establish guilt. 14 Furthermore, the standard of review on cause his family distress. 20 He and Salinas also talked appeal is the same for both direct and circumstantial ev- about getting married, but the appellant stated that he idence cases. 15 "didn't see how it was possible." Velia had a substantial [**13] retirement account that was to go to the appel- 13 Templin v. State, 711 S.W.2d 30, 33 (Tex. lant in the event of her death. Once the money was cer- Crim. App. 1986). tain to go to the appellant, 21 Salinas and the appellant 14 Miles v. State, 73 Tex. Crim. 493, 165 S.W. almost immediately got married in Las Vegas. These 567, 570 (Tex. Crim. App. 1914). facts show that the appellant had a strong motive for 15 Carlsen v. State, 654 S.W.2d 444, 449 murdering his wife. (Tex. Crim. App. 1983); Freeman v. State, 654 S.W.2d 450, 456 (Tex. Crim. App. 1983); Denby 20 Apparently, the appellant's brother had re- v. State, 654 S.W.2d 457, 464 (Tex. Crim. App. cently gotten divorced. The appellant's parents 1983); Wilson v. State, 654 S.W.2d 465, 471 took the brother's divorce extremely hard. There- (Tex. Crim. App. 1983). fore, the appellant said he did not want to put his parents through another divorce. [**11] [HN7] In reviewing the sufficiency of the 21 Velia's family filed a civil suit to prevent evidence, we should look at "events occurring before, appellant from receiving the retirement benefits, during and after the commission of the offense and may due to his alleged involvement in her death. The rely on actions of the defendant which show an under- civil suit was subsequently dropped so the crimi- standing and common design to do the prohibited act." 16 nal investigation would not be impeded. Each fact need not point directly and independently to Page 6 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

[HN10] Attempts to conceal incriminating evidence, 100 should not be allowed to play on eighteen-hole golf inconsistent statements, and implausible explanations to courses because they slow everyone down. It had also the police are probative of wrongful conduct and are also been some period of time since the appellant had played circumstances of guilt. 22 Lies about an actor's relation- golf with Knauss, and on previous occasions, they played ship with an accomplice are probative of unlawful acts. only par-three courses or went to the driving range. The [**14] 23 jury could have reasonably concluded that the appellant was attempting to manufacture an alibi so the police 22 Graham v. State, 566 S.W.2d 941, 951 would not be able to connect him to the murder. (Tex. Crim. App. 1978); United States v. Ca- The police found two casings in the appellant's car no-Guel, 167 F.3d 900, 905 (5th Cir. 1999). and a third casing on the couch in the appellant's apart- 23 Hartson v. State, 59 S.W.3d 780, 788 (Tex. ment that were all fired from the same gun. Velia was App.- Texarkana 2001, no pet.). shot three times. The firearms expert testified that the The appellant made several false statements to the casing found on the couch was probably ejected from the authorities. When the appellant gave his first statement to murder weapon when Velia was shot. Knauss testified the police, he claimed that he and Velia had a good rela- that the casings were not in the appellant's car earlier in tionship with no problems and that no one else had any the day during the golf outing. In addition, the police problems with Velia. He mentioned Salinas's name in the found a box of shell casings under some [**17] clothes statement, but only as a person to whom he lent a gun, in the appellant's closet, thirty of which matched the cas- not as a person with whom he was having an affair, and ings from the murder scene and the appellant's car. After not a person whom he knew had a motive to kill Velia. It the appellant discovered his wife's body, he had access to was only after the police discovered his omissions and both the apartment and his car before emergency per- confronted him with them that he detailed his relation- sonnel arrived. The appellant had opportunity to retrieve ship with Salinas. The appellant later lied about his rela- two casings from the crime scene and put them in his car, tionship with Salinas during a deposition taken for a civil hoping to conceal evidence. Presumably, he did not no- case. tice the third casing which was found in an inconspicu- ous location. The jury could reasonably conclude that the On the day of the murder, the appellant claimed that shell-casing evidence connected the appellant to the he dropped Salinas off [**15] at work at 6:30 am, but murder weapon. Salinas called in sick and did not arrive at work until later in the day. The appellant explained that he had to During the trial, the State claimed that Velia had drive Salinas to work because she told him that her car been lured from her apartment with a phone call so Sa- had been stolen two days before the murder. However, linas could surreptitiously enter the Guevara's apartment Salinas rented a car five days before the murder. Then, using a key from the appellant. There was no sign of on the day of the murder, after the murder had occurred, forced entry into the apartment, nor was anything stolen, she extended her rental contract and switched to [*51] despite the obvious presence of valuables. The lack of a different rental vehicle. Later, when Salinas's car was evidence of burglary suggested that the murder was recovered, it showed no signs of having been stolen. pre-meditated, not a robbery gone bad. Finally, the ap- Based on the appellant's inconsistent statements, it would pellant showed little to no emotion after discovering his be reasonable for a jury to conclude that he attempted to wife, nor did he appear to be upset at the crime scene. mislead the police about driving Salinas to work and The appellant argues that in order to be convicted as about her access to transportation. a party to the [**18] murder, there must be proof that In addition to the evidence of motive and incon- he was assisting in the commission of the offense at the sistent statements, other evidence was presented that time it was actually committed and that he had suggested the appellant's complicity in the crime. One knowledge that he was assisting in the commission of the month before the murder, the appellant took Velia to a offense. However, [HN11] the Penal Code does not re- shooting range to practice firing a rented 9mm gun, the quire that the party actually participate in the commis- same caliber gun that was used in the murder. He also sion of [*52] the offense to be criminally responsible. told a friend, Paul Knauss, that he was researching how 24 The Penal Code also does not require that a party to the to make a silencer. The day of the murder, the appellant crime be physically present at the commission of the ensured that he had an alibi for the [**16] time of the offense. 25 murder because he was playing golf with Knauss. Knauss testified that it was out of character for the ap- 24 Cross v. State, 550 S.W.2d 61, 63-64 (Tex. pellant to ask him to play golf. It was unusual because Crim. App. 1977) (The defendant was criminally Knauss was a bad golfer and appellant had, on previous responsible as a party because he planned the occasions, said that people who could not shoot under robbery with the actual robbers, even though the Page 7 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

defendant did not actually participate in the rob- 27 Kitchens v. State, 823 S.W.2d 256, 258 bery). (Tex. Crim. App.1991). 25 Morrison v. State, 608 S.W.2d 233, 234 [**21] III. The Jury Charge (Tex. Crim. App. 1980). The appellant argued in the Court of Appeals that, Based on the totality of the evidence, a jury could because the jury charge included language that allowed have reasonably concluded that the appellant was a par- the jury to convict him based on either a legal-duty the- ticipant in the murder of his wife and that he knew he ory or an aiding theory, it is unknown under which theo- was assisting in the offense. While each piece [**19] of ry the jury convicted. Therefore, since the jury could not evidence lacked sufficiency in isolation, the consistency have legally convicted him on legal-duty theory, and of the evidence and the reasonable inferences drawn there is a possibility that they did, the appellant argues therefrom were sufficient to support the verdict. There- that the verdict cannot stand. So despite the fact that the fore, after examining all the evidence in the case in the conviction may be upheld under the aiding theory, we light most favorable to the prosecution, we conclude that still must decide if the error in the jury charge affected a rational jury could have found all the elements proved, the appellant's trial in such a way that his conviction based on the aiding theory of party responsibility, be- should be reversed. 28 yond a reasonable doubt. 28 We do not address whether the inclusion of C. The Legal-Duty Theory the legal-duty theory in the charge was error. The appellant alternatively alleges that his convic- [*53] The Court of Appeals applied Texas Rule of tion was based on conduct that was not illegal. The ra- Appellate Procedure 44.2(b) to the jury charge in its tionale for this claim is that, because the appellant had no harm analysis. On original submission, the Court of Ap- legal duty to prevent his wife's murder, he could not be peals held that the jury-charge error in this case was convicted on a legal-duty theory of liability. Regardless harmless because, although [**22] an erroneous theory of whether the appellant had or did not have a legal duty of culpability was submitted to the jury, there was suffi- to prevent injury to his wife, 26 the evidence was suffi- cient evidence to convict appellant under a valid theory. cient to support the State's other theory of the case, that The en banc Court of Appeals granted the appellant's the appellant aided Salinas in murdering Velia. We have motion for rehearing and reviewed its holding based on consistently held that, [HN12] when multiple theories are their decision in Bagheri v. State. 29 Based on its reason- submitted to the jury, the evidence is sufficient to sup- ing in Bagheri, the Court of Appeals applied Rule of Ap- port a conviction so long as the evidence is sufficient to pellate Procedure 44.2(b) and concluded that the error support conviction for one of the theories submitted to affected the appellant's substantial rights. The Court of the jury. 27 [**20] Appeals reversed the conviction. We must determine whether the harm analysis used in Bagheri was the ap- 26 While generally a spouse does not have a propriate one under which the jury-charge error in this legal duty to prevent harm to the other spouse, case should be reviewed. there can be circumstances under which one spouse could have a legal duty to the other. For 29 87 S.W.3d 657 (Tex. App.-San Antonio example, if one spouse was a law enforcement 2002), aff'd, 119 S.W.3d 755 (Tex. Crim. App. official, he or she would have a legal duty to 2003). prevent a crime from being perpetrated on the other spouse. See Medrano v. State, 612 S.W.2d 576, 578 (Tex. Crim. App. 1981). Another exam- Bagheri involved a driving while intoxicated conviction ple could arise where one spouse is incapacitated in which retrograde extrapolation evidence was errone- and the other spouse has legal guardianship of the ously submitted to the jury. 30 The jury was charged with incompetent one. However, there was no evi- alternative theories of intoxication: [**23] (1) absence dence presented in this case that the appellant and of the normal use of mental or physical faculties and (2) his wife fell into any of these categories. The a blood-alcohol concentration of 0.10. 31 It was unclear question of legal duty between spouses also arises under which theory the jury convicted the defendant. 32 in civil litigation. See Rampel v. Wascher, 845 Without the erroneous admission of evidence, one of the S.W.2d 918, 925 (Tex. App.-San Antonio 1992, two theories could not legally have been the basis for a writ denied) ("spouses and other family members conviction due to insufficient evidence. have no legal right of action against each other arising from failure to take affirmative action to 30 Id., at 659. prevent injury"). Page 8 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **

31 Under the version of Penal Code Section 36 Bagheri v. State, 119 S.W.3d 755, 763 49.01 in effect when Bagheri was arrested, a per- (Tex. Crim. App. 2003). son could be shown to be intoxicated for (1) the 37 Ibid. impairment of physical or mental faculties or (2) 38 Ibid. having a blood-alcohol content over 0.10. That 39 78 S.W.3d 352, 355 (Tex. Crim. App. section has been amended so that a person may 2002). be shown to be intoxicated if he has a 40 Bagheri, 119 S.W.3d at 763. We noted that blood-alcohol concentration of 0.08. Act of May the issue in Bagheri was not whether the jury 11, 1999, 76th Leg., R.S., ch. 234, § 1, 1999 Tex. charge set out valid and proper means of commit- Gen. Laws 1082. ting the offense, or whether there was sufficient 32 Id., at 660. evidence to prove one of the alleged means by which the appellant committed the offense, but In conducting a harm analysis in Bagheri, the Court instead whether the erroneous admission of evi- of Appeals relied on Rule 44.2(b) of the Rules of Appel- dence affected the verdict. Id. at 762 n.5. late Procedure. [**24] 33 According to Rule 44.2(b), non-constitutional errors must be disregarded if the error [**26] The Court of Appeals in the instant case did not affect the appellant's substantial rights. "Substan- used the same harm analysis as it did in its Bagheri tial rights are not affected by the erroneous admission of opinion. The harm analysis under Rule 44.2(b) was ap- evidence 'if the appellate court, after examining the rec- propriate in Bagheri because the issue involved the erro- ord as a whole, has fair assurance that the error did not neous admission of evidence and its effect on the jury's influence the jury, or had but a slight effect.'" 34 The deliberations. Court of Appeals concluded that it could not tell whether This case is distinguishable from Bagheri. The is- the erroneous admission of evidence "did not influence sue in the appellant's case is whether an erroneous theory the jury, or have but a slight effect," and therefore, held in the jury charge affected the verdict, not whether the the error to be harmful. 35 erroneous admission of evidence affected the verdict. [HN13] It is settled law in Texas that error in a criminal 33 Id., at 659. jury charge is reviewed under Article 36.19 of the Code 34 Solomon v. State, 49 S.W.3d 356, 365 (Tex. of Criminal Procedure as interpreted by this Court in Crim. App. 2001). Almanza v. State. 41 As a result, we hold that the Court of 35 Bagheri, 87 S.W.3d 657 at 661. Appeals erred in assessing harm under the standard We affirmed the lower court, holding that, although found in Rule 44.2(b). the Court of Appeals reached the correct conclusion in Bagheri, its reasoning was flawed. 36 The Court of Ap- 41 686 S.W.2d 157 (Tex. Crim. App. 1985). peals based their holding on the fact that the general ver- dict made it impossible to determine which [**25] the- III. Conclusion ory the jury had relied on. 37 We stated that "this fact We hold that the Court of Appeals did not err in alone is not determinative, because evidence to prove holding that the evidence was legally sufficient to [**27] intoxication under either definition is relevant to the sin- support the conviction. We also hold that the Court of gle question of whether [*54] the appellant was, in Appeals erred in using Rule 44.2(b) as the standard by fact intoxicated." 38 After reviewing the record for the which to assess harm for the jury-charge error. As a re- relevant factors outlined in Motilla v. State 39 and Solo- sult of this holding, we need not address whether the mon v. State, supra, we held that we could not determine Court of Appeals erred in concluding that the appellant whether the erroneous admission of evidence "prejudiced was harmed. We reverse the judgment of the Court of the jury's consideration of the other evidence or substan- Appeals and remand the case to that Court to conduct a tially affected their deliberation." 40 harm analysis under Code of Criminal Procedure 36.19. Page 1

Warning As of: Aug 02, 2017

JACKSON v. VIRGINIA ET AL.

No. 78-5283

SUPREME COURT OF THE UNITED STATES

443 U.S. 307; 99 S. Ct. 2781; 61 L. Ed. 2d 560; 1979 U.S. LEXIS 10

March 21, 1979, Argued June 28, 1979, Decided

SUBSEQUENT HISTORY: Petition for Rehearing ized as sufficient to have led a rational trier of fact to Denied October 1, 1979. find guilt beyond a reasonable doubt stated a constitu- tional claim cognizable in a federal habeas proceeding. PRIOR HISTORY: CERTIORARI TO THE Review of the record in the light most favorable to the UNITED STATES COURT OF APPEALS FOR THE prosecution established a rational factfinder could readily FOURTH CIRCUIT. have found the inmate guilty beyond a reasonable doubt of first degree murder under state law. DISPOSITION: 580 F.2d 1048, affirmed. OUTCOME: The judgment of the appellate court re- CASE SUMMARY: versing the district court's order granting habeas corpus relief to the inmate was affirmed.

PROCEDURAL POSTURE: Petitioner inmate was LexisNexis(R) Headnotes convicted after a state bench trial of first degree murder. The Court of Appeals for the Fourth Circuit reversed the district court's grant of habeas corpus relief on the basis that there was no evidence of premeditation because Criminal Law & Procedure > Trials > Burdens of some evidence existed that the inmate intended to kill the Proof > Prosecution victim. The inmate was granted certiorari. [HN1] The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a rea- OVERVIEW: The inmate claimed that a federal habeas sonable doubt. court did not have to consider whether there was any evidence to support his state court conviction, but had to determine whether there was sufficient evidence. The Criminal Law & Procedure > Criminal Offenses > Court held that, assuming the procedural prerequisites Homicide > Murder > Definitions > Malice were satisfied, the inmate was entitled to habeas relief if Criminal Law & Procedure > Criminal Offenses > there was evidence that no rational trier of fact could Homicide > Murder > Second-Degree Murder > Ele- have found proof of guilt beyond a reasonable doubt. ments The Due Process Clause of the Fourteenth Amendment Criminal Law & Procedure > Trials > Burdens of protected a criminal defendant against conviction except Proof > Prosecution upon proof beyond a reasonable doubt of every fact nec- [HN2] Under Virginia law, murder is defined as the un- essary to constitute the crime charged. A state prisoner lawful killing of another with malice aforethought. Pre- who alleged the evidence could not be fairly character- meditation, or specific intent to kill, distinguishes murder Page 2 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

in the first from murder in the second degree. Proof of Criminal Law & Procedure > Trials > Defendant's this element is essential to conviction of the former of- Rights > Right to Due Process fense, and the burden of proving it clearly rests with the [HN5] The Due Process Clause of the Fourteenth prosecution. Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasona- ble doubt of every fact necessary to constitute the crime Criminal Law & Procedure > Criminal Offenses > with which he is charged. Homicide > Murder > First-Degree Murder > Elements Criminal Law & Procedure > Criminal Offenses > Homicide > Murder > Second-Degree Murder > Ele- Criminal Law & Procedure > Trials > Defendant's ments Rights > Right to Due Process Criminal Law & Procedure > Sentencing > Capital Criminal Law & Procedure > Appeals > Reversible Punishment > General Overview Errors > Jury Instructions [HN3] The degrees of murder in Virginia are specified in Evidence > Procedural Considerations > Weight & Va. Code Ann. § 18.2-32 (1975). Murder, other than cap- Sufficiency ital murder, by poison, lying in wait, imprisonment, [HN6] The Winship doctrine requires more than simply a starving, or by any willful, deliberate, and premeditated trial ritual. A doctrine establishing so fundamental a sub- killing, or in the commission of, or attempt to commit, stantive constitutional standard must also require that the arson, rape, robbery, burglary or abduction is murder of factfinder will rationally apply that standard to the facts the first degree, punishable as a Class 2 felony. All mur- in evidence. A "reasonable doubt," at a minimum, is one der other than capital murder and murder in the first de- based upon "reason." Yet a properly instructed jury may gree is murder of the second degree and is punishable as occasionally convict even when it can be said that no a Class 3 felony. Class 2 felonies carry a term of 20 years rational trier of fact could find guilt beyond a reasonable to life. Va. Code Ann. § 18.2-10(b) (1975). The sentence doubt, and the same may be said of a trial judge sitting as for Class 3 felonies can range from 5 to 20 years. Va. a jury. In a federal trial, such an occurrence has tradi- Code Ann. § 18.2-10(c). Murder itself takes its definition tionally been deemed to require reversal of the convic- in Virginia from the common law. tion. Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amend- ment due process, it follows that when such a conviction Constitutional Law > Bill of Rights > Fundamental occurs in a state trial, it cannot constitutionally stand. Rights > Procedural Due Process > General Overview Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution Criminal Law & Procedure > Appeals > Standards of Criminal Law & Procedure > Trials > Defendant's Review > General Overview Rights > Right to Due Process Criminal Law & Procedure > Habeas Corpus > Ap- [HN4] It is axiomatic that a conviction upon a charge not peals > General Overview made or upon a charge not tried constitutes a denial of [HN7] A federal court has a duty to assess the historic due process. These standards no more than reflect a facts when it is called upon to apply a constitutional broader premise that has never been doubted in our con- standard to a conviction obtained in a state court. For stitutional system: that a person cannot incur the loss of example, on direct review of a state-court conviction, liberty for an offense without notice and a meaningful where the claim is made that an involuntary confession opportunity to defend. A meaningful opportunity to de- was used against the defendant, the court reviews the fend, if not the right to a trial itself, presumes as well that facts to determine whether the confession was wrongly a total want of evidence to support a charge will con- admitted in evidence. The same duty obtains in federal clude the case in favor of the accused. Accordingly, a habeas corpus proceedings. conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. The "no evidence" Criminal Law & Procedure > Habeas Corpus > Review doctrine thus secures to an accused the most elemental of > Standards of Review > General Overview due process rights: freedom from a wholly arbitrary dep- Evidence > Procedural Considerations > Weight & rivation of liberty. Sufficiency [HN8] The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be Criminal Law & Procedure > Trials > Burdens of not simply to determine whether the jury was properly Proof > Prosecution instructed, but to determine whether the record evidence Page 3 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

could reasonably support a finding of guilt beyond a applied with explicit reference to the substantive ele- reasonable doubt. This inquiry does not require a court to ments of the criminal offense as defined by state law. ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence Criminal Law & Procedure > Criminal Offenses > in the light most favorable to the prosecution, any ration- Homicide > Murder > Definitions > Deliberation & al trier of fact could have found the essential elements of Premeditation the crime beyond a reasonable doubt. Criminal Law & Procedure > Scienter > Specific Intent [HN12] Under Virginia law, premeditation need not exist for any particular length of time, and an intent to kill Criminal Law & Procedure > Appeals > Standards of may be formed at the moment of the commission of the Review > General Overview unlawful act. Evidence > Procedural Considerations > Weight & Sufficiency [HN9] A mere modicum of evidence may satisfy a "no Criminal Law & Procedure > Habeas Corpus > Ap- evidence" standard. Any evidence that is relevant -- that peals > General Overview has any tendency to make the existence of an element of [HN13] A federal habeas corpus court faced with a rec- a crime slightly more probable than it would be without ord of historical facts that supports conflicting inferences the evidence -- could be deemed a "mere modicum." But must presume -- even if it does not affirmatively appear it could not seriously be argued that such a "modicum" of in the record -- that the trier of fact resolved any such evidence could by itself rationally support a conviction conflicts in favor of the prosecution, and must defer to beyond a reasonable doubt. that resolution.

DECISION: Criminal Law & Procedure > Habeas Corpus > Custo- Appropriate standard of review in federal habeas dy Requirement > Custody Determinations > Satisfac- corpus proceedings resulting from claim of insufficient tion of Custody evidence to support state criminal conviction, held to be Criminal Law & Procedure > Habeas Corpus > Custo- proof of guilt beyond reasonable doubt as determined by dy Requirement > In-Custody Requirement rational trier of fact. Criminal Law & Procedure > Habeas Corpus > State Grounds > Independent & Adequate Principle SUMMARY: [HN10] Under 28 U.S.C.S. § 2254, a federal court must entertain a claim by a state prisoner that he or she is be- A criminal defendant was convicted after a bench ing held in custody in violation of the Constitution or trial in the Circuit Court of Chesterfield County, Virgin- laws or treaties of the United States. A state prisoner who ia, of first-degree murder. The defendant did not dispute alleges that the evidence in support of his state convic- at trial that he had in fact shot and killed the victim, but tion cannot be fairly characterized as sufficient to have rather argued that he had been too intoxicated at the time led a rational trier of fact to find guilt beyond a reasona- to form the specific intent necessary to sustain a convic- ble doubt has stated a federal constitutional claim. Thus, tion of murder in the first-degree. Under Virginia law, assuming that state remedies have been exhausted and premeditation, or specific intent to kill, is a necessary that no independent and adequate state ground stands as element of the first-degree murder offense, with the bur- a bar, it follows that such a claim is cognizable in a fed- den of proof being on the prosecution to prove such ele- eral habeas corpus proceeding. ment. After his contention was rejected by the trial judge and a conviction resulted, the defendant ultimately commenced a habeas corpus proceeding in the United Criminal Law & Procedure > Habeas Corpus > Cog- States District Court of the Eastern District of Virginia. nizable Issues > General Overview The District Court, applying the "no evidence" criterion [HN11] In a challenge to a state criminal conviction announced in Thompson v Louisville, 362 US 199, 4 L brought under 28 U.S.C.S. § 2254, if the settled proce- Ed 2d 654, 80 S Ct 624, which held that a conviction dural prerequisites for such a claim have otherwise been based upon a record wholly devoid of any relevant evi- satisfied, the applicant is entitled to habeas corpus relief dence of an element of the offense charged is unconstitu- if it is found that upon the record evidence adduced at the tional, found the record devoid of evidence of premedita- trial that no rational trier of fact could have found proof tion and granted the writ. The United States Court of of guilt beyond a reasonable doubt. The standard must be Appeals for the Fourth Circuit, applying the same crite- rion, reversed, holding that there was some evidence that Page 4 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

the defendant had intended to kill the victim (580 F2d LAWYERS' EDITION HEADNOTES: 1048). On certiorari, the United States Supreme Court af- LAW §840.3 firmed. In an opinion by Stewart, J., joined by Brennan, criminal conviction -- proof beyond reasonable White, Marshall, and Blackmun, JJ., it was held that (1) doubt -- in a habeas corpus proceeding arising out of a claim that a person has been convicted in a state court upon insuffi- Headnote:[1] cient evidence, a federal court, rather than restricting its inquiry merely to whether there is any evidence to sup- The due process clause of the Federal Constitution port the conviction, must consider whether there is suffi- prohibits the criminal conviction of any person except cient evidence to justify a rational trier of the facts to upon proof of guilt beyond a reasonable doubt. find guilt beyond a reasonable doubt, and therefore, in a challenge to a state court conviction under 28 USCS CORPUS §17 2254, the applicant is entitled to habeas corpus relief, assuming settled precedural prerequisites for such relief criminal conviction -- sufficiency of evidence -- have otherwise been satisfied, if it is found that upon the standard of review -- record evidence adduced at trial no rational trier of facts Headnote:[2A][2B][2C][2D] could have found proof of guilt beyond a reasonable doubt in terms of the substantive elements of the criminal In a habeas corpus proceeding arising from a claim offense as defined by state law, and (2) viewed in the that a person has been convicted in a state court upon light most favorable to the prosecution, sufficient evi- insufficient evidence, a federal court must consider dence existed for a rational factfinder to conclude be- whether there is sufficient evidence to justify a rational yond a reasonable doubt that the criminal defendant in trier of fact to find guilt beyond a reasonable doubt, and the case at bar possessed the necessary intent and com- should not restrict its inquiry to whether there is any ev- mitted first-degree murder under the law of Virginia, idence to support the conviction; accordingly, in a chal- notwithstanding evidence that he had been intoxicated on lenge to a state court conviction under 28 USCS 2254, the day of the killing, since (a) uncontradicted evidence the applicant is entitled to habeas corpus relief, assuming established that the defendant had shot the victim twice, settled procedural prerequisites for such a claim have (b) the defendant himself admitted that the fatal shooting otherwise been satisfied, if it is found that upon the rec- had occurred only after he had first fired several shots ord evidence adduced at trial no rational trier of fact into the ground and then reloaded his gun, (c) the evi- could have found proof of guilt beyond a reasonable dence was clear that the two shots that killed the victim doubt in terms of the substantive elements of the criminal were fired at close and thus predictably fatal range by a offense as defined by state law. (Stevens, J., Burger, Ch. person who was experienced in the use of the murder J., and Rehnquist, J., dissented from this holding.) weapon, (d) immediately after the shooting the defendant drove without mishap into another state, and (e) shortly EVIDENCE §178 before the fatal episode, the defendant had publicly ex- pressed an intention to have sexual relations with the HOMICIDE §1 victim, whose body had been found partially unclothed. element of premeditation -- Virginia law -- Stevens, J., joined by Burger, Ch. J., and Rehnquist, Headnote:[3] J., concurring in the judgment, expressed the view that the new rule of law established by the court--that it is Under Virginia law, murder is defined as the un- unconstitutional to convict any person, including an in- lawful killing of another with malice aforethought; pre- dividual found guilty beyond a reasonable doubt by a meditation, or specific intent to kill, distinguishes murder jury, a trial judge, and one or more levels of state appel- in the first degree from murder in the second degree, and late judges, except upon proof sufficient to convince a proof of this element is essential to the conviction of the federal judge that a rational trier of fact could have found former offense, with the burden of proof on the matter the essential elements of the crime beyond a reasonable clearly resting upon the prosecution. doubt--was unnecessary to the decision in the case at bar, constituting an unwise act of lawmaking which would EVIDENCE §862 adversely affect the quality of justice administered by federal judges. HOMICIDE §3

Powell, J., did not participate. second degree murder -- voluntary intoxication -- Virginia law -- Page 5 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

Headnote:[4A][4B] existence of every element of the offense; accordingly, a state prisoner who alleges that the evidence in support of Under Virginia law, voluntary intoxication, although his state conviction cannot be fairly characterized as suf- not an affirmative defense to second degree murder, is ficient to have led a rational trier of fact to find guilt be- material to the element of premeditation and may be yond a reasonable doubt has stated a federal constitu- found to have negated it. tional claim.

ERROR §831 LAW §840.3 criminal conviction -- availability of appeal -- Vir- EVIDENCE §982 ginia law -- criminal conviction -- due process guarantee -- rea- Headnote:[5A][5B] sonable doubt -- Under Virginia law, there is no appeal as of right Headnote:[9] from a criminal conviction; however, each petition for writ of error under the applicable state statute is reviewed The rule that no person, consistentely with due pro- on the merits, and the effect of a denial is to affirm the cess, may be convicted of a crime except upon proof of judgment of conviction on the merits. guilt beyond a reasonable doubt requires also that the factfinder will rationally apply that standard to the facts in evidence, a "reasonable doubt" being, at a minimum, LAW §831.5 one based upon "reason." criminal conviction -- denial of due process -- Headnote:[6] ERROR §1650.5 A conviction upon a charge not made or upon a LAW §840.3 charge not tried constitutes a denial of due process. criminal conviction -- proof beyond reasonable doubt -- federal and state trials -- LAW §831.5 Headnote:[10] criminal offense -- notice and opportunity to defend In a federal trial, reversal of a criminal conviction -- due process -- rendered by a properly instructed jury, or judge sitting Headnote:[7] without a jury, is required where no rational trier of fact could find guilt beyond a reasonable doubt; similarly, A person cannot incur the loss of liberty for a crim- when such a conviction occurs in a state trial, it cannot inal offense without notice and a meaningful opportunity constitutionally stand, since proof beyond a reasonable to defend, and such opportunity, if not the right to trial doubt is an essential of Fourteenth Amendment due pro- itself, presumes as well that a total want of evidence to cess. support a charge will conclude the case in favor of the accused; accordingly, a criminal conviction based upon a record wholly devoid of any relevant evidence of a cru- ERROR §77 cial element of an offense is constitutionally infirm, the TRIAL §299 most elemental of due process rights being freedom from a wholly arbitrary deprivation of liberty. criminal case -- role of factfinder -- reasonableness of verdict -- LAW §840.3 Headnote:[11A][11B] due process of law -- criminal conviction -- suffi- While the factfinder in a criminal case may enter an ciency of evidence -- unassailable but unreasonable verdict of not guilty--this being the logical corollary of the rule that there can be no Headnote:[8A][8B] appeal from a judgment of acquittal, even if the evidence As an essential of the due process guaranteed by the of guilt is overwhelming--this power does not include a Fourteenth Amendment, no person shall be made to suf- power to enter an unreasonable verdict of guilty, the ap- fer the onus of a criminal conviction except upon suffi- plication of the beyond-a-reasonable-doubt standard to cient proof, which is defined as the evidence necessary to the evidence not being irretrievably committed to jury convince a trier of fact beyond a reasonable doubt of the discretion. Page 6 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

found the essential elements of the crime beyond a rea- sonable doubt. ERROR §213 LAW §62 LAW §62 criminal case -- testing evidentiary sufficiency -- motion for acquittal -- standard of inquiry -- Headnote:[12A][12B] Headnote:[16A][16B] Evidentiary sufficiency in a criminal case may be In judging motions for acquittal in federal criminal tested through a motion for judgment of acquittal and a trials, a judge must require acquittal if reasonable jurors post-verdict appeal from the denial of such a motion. would necessarily have a reasonable doubt as to guilt.

ERROR §806.5 TRIALS §299 Supreme Court review of criminal conviction -- criminal -- responsibility of trier of fact -- constitutionality -- historic facts -- Headnote:[17] Headnote:[13] In a criminal trial, it is the responsibility of the trier On direct review of a state court conviction where of fact to fairly resolve conflicts in the testimony, to the claim is made that an involuntary confession was weigh the evidence, and to draw reasonable inferences used against the defendant, the United States Supreme from basic facts to ultimate facts. Court will review the facts to determine whether the confession was wrongly admitted in evidence, since a federal court has a duty to assess the historic facts when CORPUS §17 called upon to apply a constitutional standard to a con- federal court -- standard of review -- viction obtained in a state court. Headnote:[18A][18B] CORPUS §121 The standard to be utilized by a federal habeas cor- pus court in assessing a state prisoner's claim of convic- duty of court -- state criminal conviction -- tion in state court upon insufficient evidence--namely, Headnote:[14] that there must be sufficient evidence for a rational trier of the facts to find guilt beyond a reasonable In federal habeas corpus proceedings, a federal court doubt--neither permits a court to make its own subjective has a duty to assess the historic facts when called upon to determination of guilt or innocence, nor requires scrutiny apply a constitutional standard to a conviction obtained of the reasoning process actually used by the factfinder, in a state court. the question of the constitutional sufficiency of the evi- dence being wholly unrelated to the question of how ERROR §1463 rationally the verdict was actually reached. criminal conviction -- sufficiency of evidence -- critical inquiry -- LAW §840.3 Headnote:[15] proof beyond reasonable doubt -- relevant evidence -- On review of the sufficiency of the evidence to sup- port a criminal conviction, the critical inquiry is not Headnote:[19] simply whether the jury was properly instructed, but also Evidence which has a tendency to make the exist- whether the record evidence can reasonably support a ence of an element of a crime slightly more probable finding of guilt beyond a reasonable doubt; this inquiry than it would be without the evidence (that is, "relevant" does not, in preserving the factfinder's role as weigher of evidence) cannot, by itself, rationally support a convic- the evidence, require a court to ask itself whether it be- tion of a crime beyond a reasonable doubt, as is required lieves that the evidence at trial established guilt beyond a by due process. reasonable doubt, the relevant question being whether, after viewing all the evidence in the light most favorable to the government, any rational trier of fact could have ERROR §1603 LAW §840.3 Page 7 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

harmless error -- jury instruction -- evidence -- due Headnote:[24] process of law -- The constitutional necessity in a criminal trial of Headnote:[20A][20B] proof of guilt beyond a reasonable doubt, as guaranteed by due process, is not confined to those defendants who Failure to instruct a jury in a criminal case on the are morally blameless; even a thief is entitled to claim necessity of proof of guilt beyond a reasonable doubt can that he has been unconstitutionally convicted and im- never be harmless error, so that a defendant whose guilt prisoned as a burglar. was proven by overwhelming evidence would be denied due process if the jury was instructed that he could be found guilty on a mere preponderance of the evidence; a EVIDENCE §991 defendant against whom there was but one slender bit of first-degree murder -- sufficiency of evidence -- evidence would likewise be denied due process upon conviction even though the jury was properly instructed Headnote:[25] on the prosecution's burden of proof beyond a reasonable doubt. Viewed in the light most favorable to the prosecu- tion, sufficient evidence exists for a rational factfinder to conclude beyond a reasonable doubt that a criminal de- CORPUS §17 fendant possessed the necessary intent, and therefore committed first-degree murder under state law, notwith- habeas corpus claim -- sufficiency of evidence -- standing evidence that the defendant had been intoxicat- state appellate court -- ed on the day of the killing, where (1) uncontradicted Headnote:[21A][21B] evidence establishes that the defendant shot the victim not once, but twice, (2) the defendant himself admitted The fact that a state appellate court, in gauging the that the fatal shooting had occurred only after he had first sufficiency of the evidence to support a criminal convic- fired several shots into the ground and then reloaded his tion, invoked the "proof beyond a reasonable doubt" gun, (3) the evidence clearly shows that the two shots standard, does not totally bar a properly presented claim that killed the victim were fired at close, and thus pre- by a state prisoner under 28 USCS 2254 alleging convic- dictably fatal range by a person experienced in the use of tion in a state court upon insufficient evidence, although the murder weapon, (4) it had been shown that immedi- such action by the state court is entitled to great weight. ately after the shooting, the defendant drove without mishap from the state where the murder took place to CORPUS §41 another state, and (5) shortly before the fatal episode, the defendant had publicly expressed an intention to have function of writ -- state criminal trial -- sexual relations with the victim, whose body was found Headnote:[22] partially unclothed. The federal writ of habeas corpus may be utilized to correct the occasional abuse of federal constitutional HOMICIDE §3 rights implicated in a state criminal trial which are not premeditation -- Virginia law -- vindicated in the course of state appellate review. Headnote:[26] COURTS §708 Under Virginia law, premeditation need not exist for any particular length of time, and an intent to kill may be challenge to evidentiary sufficiency -- state appellate formed at the moment of the commission of the unlawful court judgment -- federal courts -- act. Headnote:[23] A judgment by a state appellate court rejecting a EVIDENCE §419 challenge to evidentiary sufficiency is entitled to defer- criminal case -- duty of prosecution -- ence by the federal courts, as is any judgment affirming a criminal conviction. Headnote:[27] The prosecution in a criminal case is not under an LAW §840.3 affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt. proof beyond reasonable doubt -- scope of constitu- tional protection -- Page 8 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

CORPUS §120 (c) In a challenge to a state conviction brought under 28 U. S. C. § 2254, which requires a federal court to en- conflicting inferences on record -- presumption in tertain a state prisoner's claim that he is being held in favor of prosecution -- "custody in violation of the Constitution or laws or trea- Headnote:[28] ties of the United States," the applicant is entitled to ha- beas corpus relief if it is found that upon the evidence A federal habeas corpus court, faced with a record of adduced at the trial no rational trier of fact could have historical facts that supports conflicting inferences, must found proof of guilt beyond a reasonable doubt. Pp. presume, even if it does not affirmatively appear in the 320-324. record, that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolu- 2. A review of the record in this case in the light tion. most favorable to the prosecution shows that a rational factfinder could have found petitioner guilty beyond a SYLLABUS reasonable doubt of first-degree murder under Virginia law. Pp. 324-326. Petitioner was convicted of first-degree murder af- ter a bench trial in a Virginia court, and his motion and COUNSEL: Carolyn J. Colville, by appointment of the petition in the state courts to set aside the conviction on Court, 439 U.S. 1064, argued the cause pro hac vice and the ground that there was insufficient evidence of pre- filed briefs for petitioner. meditation, a necessary element of first-degree murder, were denied. He then brought a habeas corpus pro- Marshall Coleman, Attorney General of Virginia, argued ceeding in Federal District Court, which, applying the the cause for respondents. With him on the brief was "no evidence" criterion of Thompson v. Louisville, 362 Linwood T. Wells, Assistant Attorney General. * U.S. 199, found the record devoid of evidence of pre- meditation and granted the writ. Applying the same * Briefs of amici curiae urging affirmance were criterion, the Court of Appeals reversed, holding that filed by George Deukmejian, Attorney General, there was some evidence that petitioner had intended to Jack R. Winkler, Chief Assistant Attorney Gen- kill the victim. eral, Arnold O. Overoye, Assistant Attorney Held: General, and Eddie T. Keller, Willard F. Jones, and Jane K. Fischer, Deputy Attorneys General, 1. A federal habeas corpus court must consider not for the State of California; by Arthur K. Bolton, whether there was any evidence to support a state-court Attorney General, Robert S. Stubbs II, Executive conviction, but whether there was sufficient evidence to Assistant Attorney General, Don A. Langham, justify a rational trier of fact to find guilt beyond a rea- First Assistant Attorney General, John C. Wal- sonable doubt. In re Winship, 397 U.S. 358. Pp. 313-324. den, Senior Assistant Attorney General, and Su- (a) In re Winship presupposes as an essential of the san V. Boleyn, Assistant Attorney General, for due process guaranteed by the Fourteenth Amendment the State of Georgia; by Frank J. Kelley, Attorney that no person shall be made to suffer the onus of a General, Robert A. Derengoski, Solicitor Gen- criminal conviction except upon sufficient proof -- de- eral, and Thomas L. Casey, Assistant Attorney fined as evidence necessary to convince a trier of fact General, for the State of Michigan; and for their beyond a reasonable doubt of the existence of every ele- respective States by Theodore L. Sendak, Attor- ment of the offense. Pp. 313-316. ney General, David A. Arthur, Deputy Attorney General, and Donald P. Bogard, of Indiana, Rob- (b) After In re Winship, the critical inquiry on re- ert B. Hansen, Attorney General of Utah, Edward view of the sufficiency of the evidence to support a G. Biester, Jr., Attorney General of Pennsylvania, criminal conviction must be not simply to determine Paul L. Douglas, Attorney General of Nebraska, whether the jury was properly instructed on reasonable and Chauncey H. Browning, Attorney General of doubt, but to determine whether the record evidence West Virginia. could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found JUDGES: STEWART, J., delivered the opinion of the the essential elements of the crime beyond a reasonable Court, in which BRENNAN, WHITE, MARSHALL, and doubt. The Thompson "no evidence" rule is simply inad- BLACKMUN, JJ., joined. STEVENS, J., filed an opin- equate to protect against misapplications of the constitu- ion concurring in the judgment, in which BURGER, C. tional standard of reasonable doubt. Pp. 316-320. J., and REHNQUIST, J., joined, post, p. 326. POW- Page 9 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

ELL, J., took no part in the consideration or decision of That the petitioner had shot and killed Mrs. Cole the case. was not in dispute at the trial. The State's evidence es- tablished that [*310] she had been a member of the OPINION BY: STEWART staff at the local county jail, that she had befriended him while he was imprisoned there on a disorderly conduct OPINION charge, and that when he was released she had arranged for him to live in the home of her son and daugh- [*309] [***567] [**2783] MR. JUSTICE ter-in-law. Testimony by her relatives indicated that on STEWART delivered the opinion of the Court. the day of the killing the petitioner had been drinking [***LEdHR1] [1] [***LEdHR2A] [HN1] The and had spent a great deal of time shooting at targets Constitution prohibits the criminal conviction of any with his revolver. Late in the afternoon, according to person except upon proof of guilt beyond a reasonable their testimony, he had unsuccessfully attempted to talk doubt. In re Winship, 397 U.S. 358. The question in this the victim into driving him to North Carolina. She did case is what standard is to be applied in a federal habeas drive the petitioner to a local diner. There the two were corpus proceeding when the claim is made that a person observed by several police officers, who testified that has been convicted in a state court upon insufficient evi- both the petitioner and the victim had been drinking. dence. The two were observed by a deputy sheriff as they were preparing to leave the diner in her car. The petitioner I was then in possession of his revolver, and the sheriff also observed a kitchen knife in the automobile. The [***LEdHR3] [3]The petitioner was convicted after a sheriff testified that he had offered to keep the revolver bench trial in the Circuit Court of Chesterfield [**2784] until the petitioner sobered [***568] up, but that the County, Va., of the first-degree murder of a woman latter had indicated that this would be unnecessary since named Mary Houston Cole. 1[HN2] Under Virginia law, he and the victim were about to engage in sexual activity. murder is defined as "the unlawful killing of another with malice aforethought." Stapleton v. Commonwealth, Her body was found in a secluded church parking lot 123 Va. 825, 96 S. E. 801. Premeditation, or specific a day and a half later, naked from the waist down, her intent to kill, distinguishes murder in the first from mur- slacks beneath her body. Uncontradicted medical and der in the second degree; proof of this element is essen- expert evidence established that she had been shot twice tial to conviction of the former offense, and the burden of at close range with the petitioner's gun. She appeared not proving it clearly rests with the prosecution. Shiflett v. to have been sexually molested. Six cartridge cases Commonwealth, 143 Va. 609, 130 S. E. 777;Jefferson v. identified as having been fired from the petitioner's gun Commonwealth, 214 Va. 432, 201 S. E. 2d 749. were found near the body. [***LEdHR4A] After shooting Mrs. Cole, the pe- 1 [HN3] The degrees of murder in Virginia are titioner drove her car to North Carolina, where, after a specified in Va. Code § 18.2-32 (1975) as fol- short trip to Florida, he was arrested several days later. lows: In a postarrest statement, introduced in evidence by the "Murder, other than capital murder, by poi- prosecution, the petitioner admitted that he had shot the son, lying in wait, imprisonment, starving, or by victim. He contended, however, that the shooting had any willful, deliberate, and premeditated killing, been accidental. When asked to describe his condition or in the commission of, or attempt to commit, at the time of the shooting, he indicated that he had not arson, rape, robbery, burglary or abduction . . . is been drunk, but had been "pretty high." His [*311] murder of the first degree, punishable as a Class 2 story was that the victim had attacked him with a knife felony. when he resisted her sexual advances. He said that he had defended himself by firing a number of warning "All murder other than capital murder and shots into the ground, and had then reloaded his revolver. murder in the first degree is murder of the second The victim, he said, then attempted to take the gun from degree and is punishable as a Class 3 felony." him, and the gun "went off" in the ensuing struggle. He Class 2 felonies carry a term of 20 years to said that he fled without seeking help for the victim be- life. § 18.2-10 (b) (1975). The sentence for cause he was afraid. At the trial, his position was that Class 3 felonies can range from 5 to 20 years, § he had acted in self-defense. Alternatively, he claimed 18.2-10 (c). Murder itself takes its definition in that in any event the State's own evidence showed that he Virginia from the common law. Stapleton v. had been too intoxicated to form the specific intent nec- Commonwealth, 123 Va. 825, 96 S. E. 801. essary [**2785] under Virginia law to sustain a con- viction of murder in the first degree. 2 Page 10 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

dence of premeditation and granted the writ. The Court 2 [***LEdHR4A] Under Virginia law, vol- of Appeals for the Fourth Circuit reversed the judgment. untary intoxication -- although not an affirmative 6 The court noted that a dissent from the denial of certio- defense to second-degree murder -- is material to rari in a case in this Court had exposed the question the element of premeditation and may be found to whether the constitutional rule of In re Winship, 397 U.S. have negated it. Hatcher v. Commonwealth, 218 358, might compel a new criterion by which the validity Va. 811, 241 S. E. 2d 756. of a state criminal conviction must be tested in a federal habeas corpus proceeding. See Freeman v. Zahradnick, The trial judge, declaring himself convinced beyond 429 U.S. 1111 (dissent from denial of certiorari). But a reasonable doubt that the petitioner had committed the appellate court held that in the absence of further first-degree murder, found him guilty of that offense. 3 guidance from this Court it would apply the same "no The petitioner's motion to set aside the judgment as con- evidence" criterion of Thompson v. Louisville that the trary to the evidence was denied, and he was sentenced District Court had adopted. The court was of the view to serve a term of 30 years in the Virginia state peniten- that some evidence that the petitioner had intended to kill tiary. A petition for writ of error to the Virginia Su- the victim could be found in the facts that the petitioner preme Court on the ground that the evidence was insuffi- had reloaded his gun after firing warning shots, that he cient to support the conviction was denied. 4 had had time to do so, and that the victim was then shot not once but twice. The court also concluded that the 3 When trial without a jury is had on a not state trial judge could have found that the petitioner was guilty plea in Virginia, the court is to "have and not so intoxicated as to be incapable of premeditation. exercise all the powers, privileges and duties given to juries . . . ." Va. Code § 19.2-257 (1975). 5 The District Court correctly found that the 4 petitioner had exhausted his state remedies on [***LEdHR5A] There is no appeal as of this issue. See n. 4, supra. right from a criminal conviction in Virginia. 6 The opinions of the District Court and the Saunders v. Reynolds, 214 Va. 697, 204 S. E. 2d Court of Appeals are not reported. The Court of 421. Each petition for writ of error under Va. Appeals' judgment order is reported at 580 F.2d Code § 19.2-317 (1975) is reviewed on the mer- 1048. its, however, and the effect of a denial is to affirm the judgment of conviction on the merits. Saun- [***LEdHR2A] We granted certiorari to consider the ders v. Reynolds, supra. petitioner's claim that under In re Winship, supra, a fed- The petition for writ of error alleged that "the eral habeas corpus court must [*313] consider not trial Court erred in finding the Petitioner guilty of whether there was any evidence to support a state-court first-degree murder in light of the evidence in- conviction, but whether there was sufficient evidence to troduced on behalf of the Commonwealth, and on justify a rational trier of the facts to find guilt beyond a unwarranted inferences drawn from this evi- reasonable doubt. 439 U.S. 1001. dence." The petitioner contended that an affir- II mance would violate the Due Process Clause of the Fourteenth Amendment. In its order denying Our inquiry in this case is narrow. The petitioner Jackson's petition, the Virginia Supreme Court has not seriously questioned any [**2786] aspect of stated it was "of [the] opinion that there is no re- Virginia law governing the allocation of the burden of versible error in the judgment complained of . . . production or persuasion in a murder trial. See Mul- ." Virginia law requires sufficiency claims to be laney v. Wilbur, 421 U.S. 684; Patterson v. New York, raised on direct appeal; such a claim may not be 432 U.S. 197. As the record demonstrates, the judge sit- raised in a state habeas corpus proceeding. Pet- ting as factfinder in the petitioner's trial was aware that tus v. Peyton, 207 Va. 906, 153 S. E. 2d 278. the State bore the burden of establishing the element of premeditation, and stated that he was applying the rea- sonable-doubt standard in his appraisal of the State's ev- idence. The petitioner, moreover, does not contest the [*312] [***LEdHR5A] The [***569] petitioner conclusion of the Court of Appeals that under the "no then commenced this habeas corpus proceeding in the evidence" rule of Thompson v. Louisville, supra, his United States District Court for the Eastern District of conviction of first-degree murder is sustainable. Virginia, raising the same basic claim. 5 Applying the "no [***570] And he has not attacked the sufficiency of the evidence" criterion of Thompson v. Louisville, 362 U.S. evidence to support a conviction of second-degree mur- 199, the District Court found the record devoid of evi- der. His sole constitutional claim, based squarely upon Page 11 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

Winship, is that the District Court and the Court of Ap- by a preponderance of the evidence. [*315] Applying peals were in error in not recognizing that the question to [***571] that standard, the judge was satisfied that the be decided in this case is whether any rational factfinder juvenile was "guilty," but he noted that the result might could have concluded beyond a reasonable doubt that the well have been different under a standard of proof be- killing for which the petitioner was convicted was pre- yond [**2787] a reasonable doubt. In short, the record meditated. The question thus raised goes to the basic in Winship was not totally devoid of evidence of guilt. nature of the constitutional right recognized in the Win- The constitutional problem addressed in Winship ship opinion. was thus distinct from the stark problem of arbitrariness III presented in Thompson v. Louisville. In Winship, the Court held for the first time that [HN5] the Due Process A Clause of the Fourteenth Amendment protects a defend- This is the first of our cases to expressly consider the ant in a criminal case against conviction "except upon question whether the due process standard recognized in proof beyond a reasonable doubt of every fact necessary Winship constitutionally protects an accused against to constitute the crime with which he is charged." 397 conviction except upon evidence that is sufficient fairly U.S., at 364. In so holding, the Court emphasized that to support a conclusion [*314] that every element of proof beyond a reasonable doubt has traditionally been the crime has been established beyond a reasonable regarded as the decisive difference between criminal doubt. Upon examination of the fundamental differences culpability and civil liability. Id., at 358-362. See Davis between the constitutional underpinnings of Thompson v. v. United States, 160 U.S. 469; Brinegar v. United States, Louisville, supra, and of In re Winship, supra, the answer 338 U.S. 160, 174; Leland v. Oregon, 343 U.S. 790; 9 J. to that question, we think, is clear. Wigmore, Evidence § 2495, pp. 307-308 (3d ed. 1940). Cf. Woodby v. INS, 385 U.S. 276, 285. The standard of [***LEdHR6] [6] [***LEdHR7] [7][HN4] It is axi- proof beyond a reasonable doubt, said the Court, "plays a omatic that a conviction upon a charge not made or upon vital role in the American scheme of criminal proce- a charge not tried constitutes a denial of due process. dure," because it operates to give "concrete substance" to Cole v. Arkansas, 333 U.S. 196, 201; Presnell v. Geor- the presumption of innocence, to ensure against unjust gia, 439 U.S. 14. These standards no more than reflect a convictions, and to reduce the risk of factual error in a broader premise that has never been doubted in our con- criminal proceeding. 397 U.S., at 363. At the same stitutional system: that a person cannot incur the loss of time, by impressing upon the factfinder the need to reach liberty for an offense without notice and a meaningful a subjective state of near certitude of the guilt of the ac- opportunity to defend. E. g., Hovey v. Elliott, 167 U.S. cused, the standard symbolizes the significance that our 409, 416-420. Cf. Boddie v. Connecticut, 401 U.S. 371, society attaches to the criminal sanction and thus to lib- 377-379. A meaningful opportunity to defend, if not the erty itself. Id., at 372 (Harlan, J., concurring). right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in [***LEdHR8A] The constitutional standard recog- favor of the accused. Accordingly, we held in the nized in the Winship case was expressly phrased as one Thompson case that a conviction based upon a record that protects an accused against a conviction except on wholly devoid of any relevant evidence of a crucial ele- "proof beyond a reasonable doubt . . . ." In subsequent ment of the offense charged is constitutionally infirm. cases discussing the reasonable-doubt standard, we have See also Vachon v. New Hampshire, 414 U.S. 478; Ad- never departed from this definition of the rule or from derley v. Florida, 385 U.S. 39; Gregory v. Chicago, 394 [*316] the Winship understanding of the central pur- U.S. 111; Douglas v. Buder, 412 U.S. 430. The "no evi- poses it serves. See, e. g., Ivan V. v. City of New York, dence" doctrine of Thompson v. Louisville thus secures 407 U.S. 203, 204; Lego v. Twomey, 404 U.S. 477, to an accused the most elemental of due process rights: 486-487; Mullaney v. Wilbur, 421 U.S. 684; Patterson v. freedom from a wholly arbitrary deprivation of liberty. New York, 432 U.S. 197; Cool v. United States, 409 U.S. 100, 104. In short, Winship presupposes as an essential The Court in Thompson explicitly stated that the due of the due process guaranteed by the Fourteenth process right at issue did not concern a question of evi- Amendment that no person shall be made to suffer the dentiary "sufficiency." 362 U.S., at 199. The right es- onus of a criminal conviction except upon sufficient tablished in In re Winship, however, clearly stands on a proof -- defined as evidence necessary to convince a trier different footing. Winship involved an adjudication of of fact beyond a reasonable doubt of the existence of juvenile delinquency made by a judge under a state stat- every element of the offense. ute providing that the prosecution must prove the con- duct charged as delinquent -- which in Winship would B have been a criminal offense if engaged in by an adult -- Page 12 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

Although several of our cases have intimated that 8 The trier of fact in this case was a judge and the fact-finder's application of the reasonable-doubt not a jury. But this is of no constitutional sig- standard to the evidence may present a [***572] fed- nificance. The record makes clear that the judge eral question when a state conviction is challenged, Lego deemed himself "properly instructed." v. Twomey, supra, at 487; Johnson v. Louisiana, 406 9 A "reasonable doubt" has often been de- U.S. 356, 360, the Federal Courts of Appeals have gen- scribed as one "based on reason which arises erally assumed that so long as the reasonable-doubt in- from the evidence or lack of evidence." Johnson struction has been given at trial, the no-evidence doctrine v. Louisiana, 406 U.S. 356, 360 (citing cases). of Thompson v. Louisville remains the appropriate guide For a discussion of variations in the definition for a federal habeas corpus court to apply in assessing a used in jury instructions, see Holland v. United state prisoner's challenge to his conviction as founded States, 348 U.S. 121, 140 (rejecting contention upon insufficient evidence. See, e. g., Cunha v. Brewer, that circumstantial evidence must exclude every 511 F.2d 894 (CA8). 7 We cannot agree. hypothesis but that of guilt). 10 [***LEdHR11A] [***LEdHR12A] 7 The Court of Appeals in the present case, of This, of course, does not mean that convictions course, recognized that Winship may have are frequently reversed upon this ground. The changed the constitutional standard in federal practice in the federal courts of entertaining habeas corpus. And the Court of Appeals for the properly preserved challenges to evidentiary suf- Sixth Circuit recently recognized the possible ficiency, see Fed. Rule Crim. Proc. 29, serves impact of Winship on federal habeas corpus in a only to highlight the traditional understanding in case in which it held that "a rational trier of fact our system that the application of the be- could have found the defendant . . . guilty beyond yond-a-reasonable-doubt standard to the evidence a reasonable doubt." Spruytte v. Koehler, affir- is not irretrievably committed to jury discretion. mance order, 590 F.2d 335. An even more recent To be sure, the factfinder in a criminal case has case in that court provoked a lively debate among traditionally been permitted to enter an unassaila- three of its members regarding the effect of Win- ble but unreasonable verdict of "not guilty." This ship upon federal habeas corpus. The writ was is the logical corollary of the rule that there can granted in that case, even though the trial record be no appeal from a judgment of acquittal, even if concededly contained "some evidence" of the ap- the evidence of guilt is overwhelming. The plicant's guilt. See Speigner v. Jago, 603 F.2d power of the factfinder to err upon the side of 1208. mercy, however, has never been thought to in- clude a power to enter an unreasonable verdict of [***LEdHR9] [9] [***LEdHR10] [10] guilty. Carpenters & Joiners v. United States, [***LEdHR11A] [***LEdHR12A] [HN6] The 330 U.S. 395, 408. Cf. Capital Traction Co. v. [**2788] Winship doctrine requires more than simply a Hof, 174 U.S. 1, 13-14. Any such premise is trial [*317] ritual. A doctrine establishing so funda- wholly belied by the settled practice of testing mental a substantive constitutional standard must also evidentiary sufficiency through a motion for require that the factfinder will rationally apply that judgment of acquittal and a postverdict appeal standard to the facts in evidence. 8 A "reasonable doubt," from the denial of such a motion. See generally at a minimum, is one based upon "reason." 9 Yet a 4 L. Orfield, Criminal Procedure Under the Fed- properly instructed jury may occasionally convict even eral Rules §§ 29:1-29:29 (1967 and Supp. 1978). when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, [***LEdHR13] [13] [***LEdHR14] [14][HN7] A such an occurrence has traditionally been deemed to re- federal court has a duty to assess the historic facts when quire reversal of the conviction. Glasser v. United it is called upon to apply a constitutional standard to a States, 315 U.S. 60, 80; Bronston v. United States, 409 conviction obtained in a state court. For example, on U.S. 352. See also, e. g., Curley v. United States, 81 U. S. direct review of a state-court conviction, where the claim App. D. C. 389, 392-393, 160 F.2d 229, 232-233. 10 Un- is made that an involuntary confession was used against der [***573] Winship, which established [*318] the defendant, this Court reviews the facts to determine proof beyond a reasonable doubt as an essential of Four- whether the confession was wrongly admitted in evi- teenth Amendment due process, it follows that when such dence. Blackburn v. Alabama, 361 U.S. 199, 205-210. a conviction occurs in a state trial, it cannot constitution- Cf. Drope v. Missouri, 420 U.S. 162, 174-175, and n. ally stand. 10. The same duty obtains in federal habeas corpus pro- ceedings. See Townsend v. Sain, 372 U.S. 293, 318; Page 13 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

Brown v. Allen, 344 U.S. 443, 506-507 (opinion of tion"). This is now the prevailing criterion for Frankfurter, J.). judging motions for acquittal in federal criminal trials. See generally 2 C. Wright, Federal Prac- [***LEdHR15] [15] [***LEdHR16A] tice and Procedure § 467 (1969 and Supp. 1978). [***LEdHR17] [17] [***LEdHR18A] After Win- 12 Contrary to the suggestion in the opinion ship[HN8] the critical inquiry on review of the suffi- concurring in the judgment, the criterion an- ciency of the evidence to support a criminal conviction nounced today as the constitutional minimum re- must be not simply to determine whether the jury was quired to enforce the due process right estab- properly instructed, but to determine whether the record lished in Winship is not novel. See, e. g., United evidence could reasonably support a finding of guilt be- States v. Amato, 495 F.2d 545, 549 (CA5) yond a [**2789] reasonable doubt. 11 But this inquiry ("whether, taking the view [of the evidence] most does not require a court to "ask [*319] itself whether it favorable to the Government, a reasona- believes that the evidence at the trial established guilt bly-minded jury could accept the relevant evi- beyond a reasonable doubt." Woodby v. INS, 385 U.S., at dence as adequate and sufficient to support the 282 (emphasis added). Instead, the relevant question is conclusion of the defendant's guilt beyond a rea- whether, after viewing the evidence in the light most sonable doubt") (emphasis added); United States favorable to the prosecution, any rational trier of fact v. Jorgenson, 451 F.2d 516, 521 (CA10) (wheth- could have found the essential elements of the crime er, "considering the evidence in the light most beyond a reasonable doubt. See Johnson v. Louisiana, favorable to the government, there is substantial 406 U.S., at 362. This familiar standard gives full play to evidence from which a jury might reasonably the responsibility of the trier of fact fairly to resolve con- find that an accused is guilty beyond a reasonable flicts in the testimony, to weigh the evidence, and to doubt") (emphasis added). Glasser v. United draw reasonable inferences from basic facts to ultimate States, 315 U.S. 60, 80, has universally been un- facts. Once a defendant has been found guilty of the derstood as a case applying this criterion. See, e. crime charged, the factfinder's role as weigher of the g., Harding v. United States, 337 F.2d 254, 256 evidence is preserved through a legal conclusion that (CA8). See generally 4 Orfield, supra n. 10, § upon judicial review all of the evidence is to be consid- 29.28. ered in the light most favorable to the prosecution. 12 The 13 [***LEdHR18A] The question whether criterion [***574] thus impinges upon "jury" discre- the evidence is constitutionally sufficient is of tion only to the extent necessary to guarantee the funda- course wholly unrelated to the question of how mental protection of due process of law. 13 rationally the verdict was actually reached. Just as the standard announced today does not permit 11 a court to make its own subjective determination of guilt or innocence, it does not require scrutiny [***LEdHR16A] Until 1972, the Court of of the reasoning process actually used by the Appeals for the Second Circuit took the position factfinder -- if known. See generally 3 F. Whar- advanced today by the opinion concurring in the ton, Criminal Procedure § 520 (12th ed. 1975 and judgment that the beyond-a-reasonable-doubt Supp. 1978). standard is merely descriptive of the state of mind required of the factfinder in a criminal case and not of the actual quantum and quality of proof necessary to support a criminal conviction. Thus, [*320] [***LEdHR19] [19] [***LEdHR20A] That that court held that in a jury trial the judge need the Thompson "no evidence" rule is simply inadequate to not distinguish between criminal and civil cases protect against misapplications of the constitutional for the purpose of ruling on a motion for judg- standard of reasonable doubt is readily apparent. [HN9] ment of acquittal. United States v. Feinberg, "[A] mere modicum of evidence may satisfy a 'no evi- 140 F.2d 592, 594. In United States v. Taylor, dence' standard . . . ." Jacobellis v. Ohio, 378 U.S. 184, 464 F.2d 240 (CA2), Feinberg was overruled, 202 (Warren, C. J., dissenting). Any evidence that is partly on the strength of Winship. The Taylor relevant -- that has any tendency to make the existence of court adopted the directed-verdict criterion artic- an element of a crime slightly more probable than it ulated in Curley v. United States, 81 U. S. App. would be without the evidence, cf. Fed. Rule Evid. 401 -- D. C. 389, 392-393, 160 F.2d 229, 232-233 (If could be deemed a "mere modicum." But it could not "reasonable" jurors "must necessarily have . . . a seriously be argued that such a "modicum" of evidence reasonable doubt" as to guilt, the judge "must re- could by itself rationally support a conviction beyond a quire acquittal, because no other result is permis- reasonable doubt. The [**2790] Thompson doctrine sible within the fixed bounds of jury considera- simply fails to supply a workable or even a predictable Page 14 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

standard for determining whether the due process com- duplicate the work of the state appellate courts, will dis- mand of Winship has been honored. 14 serve the societal interest in the finality of state criminal proceedings, and will increase friction between the fed- 14 eral and state judiciaries. In sum, counsel for the State urges that this type of constitutional claim should be [***LEdHR20A] Application of the deemed to fall within the limit on federal habeas corpus Thompson standard to assess the validity of a jurisdiction identified in Stone v. Powell, 428 U.S. 465, criminal conviction after Winship could lead to with respect to Fourth Amendment claims. We disagree. absurdly unjust results. Our cases have indicated that failure to instruct a jury on the necessity of [***LEdHR21A] First, the burden that is likely to proof of guilt beyond a reasonable doubt can follow from acceptance of the Winship standard has, we never be harmless error. See Cool v. United think, been exaggerated. Federal-court challenges to the States, 409 U.S. 100. Cf. Taylor v. Kentucky, evidentiary support for state convictions have since 436 U.S. 478. Thus, a defendant whose guilt was Thompson been dealt with under § 2254. E. g., Free- actually proved by overwhelming evidence would man v. Stone, 444 F.2d 113 (CA9); Grieco v. [*322] be denied due process if the jury was instructed Meachum, 533 F.2d 713 (CA1); Williams v. Peyton, 414 that he could be found guilty on a mere prepon- F.2d 776 (CA4). A more stringent standard will expand derance of the evidence. Yet a defendant against the contours of this type of claim, but will not create an whom there was but one slender bit of evidence entirely new class of cases cognizable on federal habeas would not be denied due process so long as the corpus. Furthermore, most meritorious challenges to jury has been properly instructed on the prosecu- constitutional sufficiency of the evidence undoubtedly tion's burden of proof beyond a reasonable doubt. will be recognized in the state courts, and, if the state Such results would be wholly faithless to the courts have fully considered the issue of sufficiency, the constitutional rationale of Winship. task of a federal habeas court should not be difficult. C Cf. Brown v. Allen, 344 U.S., at 463. 15 [**2791] And this type of claim can almost always be judged on the [***LEdHR8A] [HN10] Under 28 U. S. C. § 2254, a written record without need for an evidentiary hearing in federal court must entertain a claim by a state prisoner the federal court. that he or she is being held in "custody in violation of the Constitution or laws or treaties of the [*321] United 15 [***LEdHR21A] The Virginia Supreme States." Under the Winship decision, it is clear that a Court's order denying Jackson's petition for writ state prisoner who alleges that the evidence in support of of error does not make clear what criterion was his state conviction cannot be fairly characterized as suf- applied to the petitioner's claim that the evidence ficient to have led a rational trier of fact to find guilt be- in support of his first-degree murder conviction yond a reasonable doubt has stated a federal constitu- was insufficient. See n. 4, supra. At oral ar- tional claim. Thus, assuming that state remedies have gument, counsel for the petitioner contended that been exhausted, see 28 U. S. C. § 2254 (b), and that no the Virginia sufficiency standard is not keyed to independent and adequate state ground stands as a bar, Winship. Counsel for the State disagreed. Un- see [***575] Estelle v. Williams, 425 U.S. 501;Francis der these circumstances, we decline to speculate v. Henderson, 425 U.S. 536;Wainwright v. Sykes, 433 as to the criterion that the state court applied. U.S. 72;Fay v. Noia, 372 U.S. 391, 438, it follows that The fact that a state appellate court invoked the such a claim is cognizable in a federal habeas corpus proper standard, however, although entitled to proceeding. The respondents have argued, nonetheless, great weight, does not totally bar a properly pre- that a challenge to the constitutional sufficiency of the sented claim of this type under § 2254. evidence should not be entertained by a federal district [***LEdHR22] [22]Second, the problems of fi- court under 28 U. S. C. § 2254. nality and federal-state comity arise whenever a state In addition to the argument that a Winship standard prisoner invokes the jurisdiction of a federal court to invites replication of state criminal trials in the guise of § redress an alleged constitutional violation. A challenge 2254 proceedings -- an argument that simply fails to to a state conviction brought on the ground that the evi- recognize that courts can and regularly do gauge the suf- dence cannot fairly be deemed [***576] sufficient to ficiency of the evidence without intruding into any le- have established guilt beyond a reasonable doubt states a gitimate domain of the trier of fact -- the respondents federal constitutional claim. Although state appellate have urged that any departure from the Thompson test in review undoubtedly will serve in the vast majority of federal habeas corpus proceedings will expand the num- cases to vindicate the due process protection that follows ber of meritless claims brought to the federal courts, will from Winship, the same could also be said of the vast Page 15 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

majority of other federal constitutional rights that may be [**2792] rational trier of fact could have found proof of implicated in a state criminal trial. It is the occasional guilt beyond a reasonable [***577] doubt. 16 abuse that the federal writ of habeas corpus stands ready to correct. Brown v. Allen, supra, at 498-501 (opinion 16 of Frankfurter, J.). [***LEdHR2A] The respondents have [*323] [***LEdHR23] [23]The respondents suggested that this constitutional standard will have argued nonetheless that whenever a person con- invite intrusions upon the power of the States to victed in a state court has been given a "full and fair define criminal offenses. Quite to the contrary, hearing" in the state system -- meaning in this instance the standard must be applied with explicit refer- state appellate review of the sufficiency of the evidence ence to the substantive elements of the criminal -- further federal inquiry -- apart from the possibility of offense as defined by state law. Whether the discretionary review by this Court -- should be fore- State could constitutionally make the conduct at closed. This argument would prove far too much. A issue criminal at all is, of course, a distinct ques- judgment by a state appellate court rejecting a challenge tion. See Papachristou v. Jacksonville, 405 U.S. to evidentiary sufficiency is of course entitled to defer- 156; Robinson v. California, 370 U.S. 660. ence by the federal courts, as is any judgment affirming a IV criminal conviction. But Congress in § 2254 has selected the federal district courts as precisely the forums that are [***LEdHR25] [25]Turning finally to the specific responsible for determining whether state convictions facts of this case, we reject the petitioner's claim that have been secured in accord with federal constitutional under the constitutional standard dictated by Winship his law. The federal habeas corpus statute presumes the conviction of first-degree murder cannot stand. A re- norm of a fair trial in the state court and adequate state view of the record in the light most favorable to the postconviction remedies to redress possible error. See prosecution convinces us that a rational factfinder could 28 U. S. C. §§ 2254 (b), (d). What it does not presume readily have found the petitioner guilty beyond a rea- is that these state proceedings will always be without sonable doubt of first-degree murder under Virginia law. error in the constitutional sense. The duty of a federal habeas corpus court to appraise a claim that constitution- [***LEdHR26] [26]There was no question at the trial al error did occur -- reflecting as it does the belief that that the petitioner had fatally shot Mary Cole. The cru- the "finality" of a deprivation of liberty through the in- cial factual dispute went to the sufficiency of the evi- vocation of the criminal sanction is simply not to be dence to support a finding that he had specifically in- achieved at the expense of a constitutional right -- is not tended to kill her. This question, as the Court of Ap- one that can be so lightly abjured. peals recognized, must be gauged in the light of applica- ble Virginia law defining the element of premeditation. [***LEdHR24] [24]The constitutional issue presented [HN12] Under that law it is well settled that premedita- in this case is far different from the kind of issue that was tion need not exist for any particular length of time, and the subject of the Court's decision in Stone v. Powell, that an intent to kill may be formed at the moment of the supra.The question whether a defendant has been con- commission of the unlawful act. Commonwealth v. victed upon inadequate evidence is central to the basic Brown, 90 Va. 671, 19 S. E. 447.From the circumstantial question of guilt or innocence. The constitutional ne- evidence in the record, it is [*325] clear that the trial cessity of proof beyond a reasonable doubt is not con- judge could reasonably have found beyond a reasonable fined to those defendants who are morally blameless. E. doubt that the petitioner did possess the necessary intent g., Mullaney v. Wilbur, 421 U.S., at 697-698 (require- at or before the time of the killing. ment of proof beyond a reasonable doubt is not "[lim- ited] to those facts which, if not proved, would wholly The prosecution's uncontradicted evidence estab- exonerate" the accused). Under our system of criminal lished that the petitioner shot the victim not once but justice even a thief [*324] is entitled to complain that twice. The petitioner himself admitted that the fatal he has been unconstitutionally convicted and imprisoned shooting had occurred only after he had first fired several as a burglar. shots into the ground and then reloaded his gun. The evidence was clear that the two shots that killed the vic- [***LEdHR2A] We hold that [HN11] in a chal- tim were fired at close, and thus predictably fatal, range lenge to a state criminal conviction brought under 28 U. by a person who was experienced in the use of the mur- S. C. § 2254 -- if the settled procedural prerequisites for der weapon. Immediately after the shooting, the peti- such a claim have otherwise been satisfied -- the appli- tioner drove without mishap from Virginia to North Car- cant is entitled to habeas corpus relief if it is found that olina, a fact quite at odds with his story of extreme in- upon the record evidence adduced at the trial no toxication. Shortly before the fatal episode, he had pub- Page 16 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

licly expressed an intention to have sexual relations with MR. JUSTICE STEVENS, with whom THE CHIEF the victim. Her body was found partially unclothed. JUSTICE and MR. JUSTICE REHNQUIST join, con- From these uncontradicted circumstances, a rational fact- curring in the judgment. The Constitution prohibits the finder readily could have inferred beyond a reasonable criminal conviction of any person except upon proof doubt that the petitioner, notwithstanding evidence that sufficient to convince the trier of fact of guilt beyond a he had been drinking on the day of the killing, did have reasonable doubt. Cf. ante, at 309. This rule has pre- the capacity to form and had in fact formed an intent to vailed in our courts "at least from our early years as a kill the victim. Nation." In re Winship, 397 U.S. 358, 361. The petitioner's calculated behavior both before and Today the Court creates a new rule of law -- one that after the killing demonstrated that he was fully capable has never prevailed in our jurisprudence. According to of committing premeditated murder. His claim of the Court, the Constitution now prohibits the criminal self-defense would have required the trial judge to draw conviction of any person -- including, apparently, a per- a series of improbable inferences from the basic facts, son against whom the facts have already been found be- prime among them the inference that he was wholly un- yond a reasonable doubt by a jury, a trial judge, and one interested in sexual [***578] activity with the victim or more levels of state appellate judges -- except upon but that she was so interested as to have willingly re- proof sufficient to convince a federal [*327] judge moved part of her clothing and then attacked him with a that a "rational trier of fact could have found the essential knife when he resisted her advances, even though he was elements of the crime beyond a reasonable doubt." Ante, armed with a loaded revolver that he had just demon- at 319. strated he knew how to use. It is evident from the rec- The adoption of this novel constitutional rule is not ord that the trial judge found this story, including the necessary to the decision of this case. Moreover, I be- petitioner's belated contention that he had been so intox- lieve it is an unwise act of lawmaking. Despite its chi- icated as to be incapable of premeditation, incredible. merical appeal as a new counterpart to the venerable principle recognized in Winship, I am persuaded that its [***579] precipitous adoption will adversely affect the [*326] [***LEdHR27] [27] [***LEdHR28] quality of justice administered by federal judges. For [28]Only under a theory that the prosecution was under that reason I shall analyze this new brainchild with some an affirmative duty to rule out every hypothesis except care. that of guilt beyond a reasonable doubt could this peti- I shall begin by explaining why neither the record in tioner's [**2793] challenge be sustained. That theory this case, nor general experience with challenges to the the Court has rejected in the past. Holland v. United sufficiency of the evidence supporting criminal convic- States, 348 U.S. 121, 140. We decline to adopt it today. tions, supports, much less compels, the conclusion that Under the standard established in this opinion as neces- there is any need for this new constitutional precept. I sary to preserve the due process protection recognized in shall next show that it is not logically compelled by ei- Winship, [HN13] a federal habeas corpus court faced ther the holding or the analysis in In re Winship, supra. with a record of historical facts that supports conflicting Finally, I shall try to demonstrate why the Court's new inferences must presume -- even if it does not affirma- rule -- if it is not just a meaningless shibboleth -- threat- tively appear in the record -- that the trier of fact resolved ens serious harm to the quality of our judicial system. any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold I that a rational trier of fact could reasonably have found that the petitioner committed murder in the first degree It is, of course, part of this Court's tradition that new under Virginia law. rules of law emerge from the process of case-by-case adjudication of constitutional issues. Widespread con- For these reasons, the judgment of the Court of Ap- cern that existing constitutional doctrine is unjust often peals is affirmed. provides the occasion, and is sometimes even relied upon as a justification, for the exercise of such lawmaking It is so ordered. authority by the Court. Without entering the debate MR. JUSTICE POWELL took no part in the con- over the legitimacy of this justification for judicial ac- sideration or decision of this case. tion, it is at least certain that it should not be the basis for dramatic -- indeed, for any -- constitutional lawmaking CONCUR BY: STEVENS efforts unless (1) those efforts are necessary to the deci- sion of the case at hand and (2) powerful reasons favor a CONCUR change in the law. See Ashwander v. TVA, 297 U.S. 288, 345-348 (Brandeis, J., concurring). Page 17 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

[*328] In this case, the Court's analysis fails on bly involved legal issues masquerading as sufficiency both counts. It has accordingly formulated a new con- questions. 1 It is difficult to believe that the federal courts stitutional principle under the [**2794] most danger- will turn up more sufficiency problems than this on ha- ous possible circumstances -- i. e., where the exercise of beas review when, instead of acting as the first level of judicial authority is neither necessitated nor capable of [*330] review, as in the cases [**2795] studied, they being limited by "the precise facts to which [the rule is will be acting as the second, third, or even fourth level of originally] to be applied," Liverpool, N. Y. & P. S. S. Co. appellate review. In short, there is simply no reason to v. Emigration Comm'rs, 113 U.S. 33, 39, nor even by tinker with an elaborate mechanism that is now func- some broader set of identifiable experiences with the evil tioning well. supposedly involved. 1 In United States v. Tarr, 589 F.2d 55 (CA1 Most significantly, the Court has announced its new 1978), the court overturned one of two counts of constitutional edict in a case in which it has absolutely which appellant was convicted because there was no bearing on the outcome. The only factual issue at insufficient evidence to prove that he had the in- stake is whether petitioner intended to kill his victim. If tent to aid and abet the unauthorized transfer of a the evidence is viewed "in the light most favorable to the machinegun in violation of 26 U. S. C. § 5861 (e) prosecution," ante, at 319 -- and, indeed, we may view it and 18 U. S. C. § 2. The court found "no evi- through the eyes of the actual factfinder, whose observa- dence" that appellant had the requisite tions about the evidence are recorded in the trial tran- knowledge. 589 F.2d, at 60. script -- there can be only one answer to that question no matter what standard of appellate review is applied. In In United States v. Whetzel, 191 U. S. App. Part IV of its opinion, the Court accepts this conclusion. D. C. 184, 589 F.2d 707 (1978), the court over- There is, therefore, no need to fashion a broad new rule turned 2 of the 35 counts of appellant's conviction of constitutional law to dispose of this squalid but rather because "the Government failed to offer proof routine murder case. Under any view, the evidence is that would permit a jury to reasonably infer that sufficient. the merchandise [appellant] transported had a value of $ 5,000." Id., at 188, 589 F.2d, at 711. The Court's new rule is adopted simply to forestall However, the basis for this determination was some hypothetical evil that has not been demonstrated, that the Government's valuation method, which and in my view is not fairly demonstrable. Although the the trial court allowed the jury to consider, was Judiciary has received its share of criticism -- principally legally erroneous. Similarly, in United States v. because of the delays and costs associated with litigation Fearn, 589 F.2d 1316 (CA7 1978), the court -- I [***580] am aware of no general dissatisfaction overturned the conviction based on a federal with the accuracy of the factfinding process or the ade- nonconstitutional rule, which surely would not quacy of the rules applied by state appellate courts when apply in habeas review of state convictions, "that reviewing claims of insufficiency. a conviction must rest upon firmer ground than What little evidence the Court marshals in favor of a the uncorroborated admission or confession of contrary conclusion is unconvincing. See ante, at the accused." Id., at 1321. The court did not in- 317-318, n. 10. The Court is simply incorrect in imply- dependently analyze whether the uncorroborated ing that there are a significant number of occasions when confession involved in that case could itself have federal convictions are [*329] overturned on appeal allowed a rational trier of fact to find guilt be- because no rational trier of fact could have found guilt yond a reasonable doubt. beyond a reasonable doubt. The two opinions of this II Court cited ante, at 317, stand for no such proposition. In neither was a conviction reversed for insufficiency. There is nothing in the facts of this case or, so far as See Glasser v. United States, 315 U.S. 60; Bronston v. the Court has demonstrated, in those of cases like it to United States, 409 U.S. 352. warrant today's excursion into constitutional rulemaking. The Court instead portrays its rule as the logical corol- Moreover, a study of the 127 federal criminal con- lary of the principle recognized in Winship regarding the victions that were reviewed by the various Courts of subjective state of mind that persons charged with the Appeals and reported in the most recent hardbound vol- responsibility of evaluating the credibility of evidence ume of the Federal Reporter, Second Series, Volume must possess before they find the [***581] defendant 589, reveals that only 3 were overturned on sufficiency guilty in a criminal case. But an examination of Win- grounds. And of those, one was overturned under a "no ship reveals that it has nothing to do with appellate, evidence" standard, while the other two, in which a total much less habeas corpus, review standards; that the rea- of only 3 out of 36 counts were actually reversed, argua- soning used in that case to reach its conclusion with re- Page 18 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

spect to the trier of fact does not support, and indeed "It is also important in our free society that counsels against, the Court's conclusion with respect to every individual going about his ordinary affairs federal habeas judges; and that there is no necessary have confidence that his government cannot ad- connection between the rule recognized in Winship and judge him guilty of a criminal offense without the rule invented by the Court today. convincing a proper factfinder of his guilt with utmost certainty." Ibid. (emphasis added). In distinct contrast to the circumstances of this case, the facts of Winship presented "a case where the choice See also id., at 370 (Harlan, J., concurring) of the standard of proof has made a difference: the [trial] ("[A] standard of proof represents an attempt to judge below forthrightly acknowledged that he believed instruct the factfinder concerning the degree of by a preponderance of the evidence [in], but was not confidence our society thinks he should have in convinced beyond a reasonable doubt" of, the juvenile's the correctness of factual conclusions for a par- guilt. 397 U.S., at 369 (Harlan, J., concurring). Because ticular type of adjudication") (emphasis added). the trier of fact entertained such a doubt, this Court held Moreover, the mode of analysis employed in Win- that the juvenile was constitutionally entitled to the same ship finds no counterpart in the Court's opinion in this verdict that an adult defendant in a criminal case would case. For example, in Winship, the Court pointed out receive. In so holding, the Court merely extended to the [**2796] breadth of both the historical and the juveniles a protection that had traditionally been availa- current acceptance of the reasonable-doubt [***582] ble to defendants in criminal trials in this Nation. Id., at trial standard. 3 In this case, by contrast, the Court 361. [*332] candidly recognizes that the Federal Courts of But nothing in the Winship opinion suggests that it Appeals have "generally" rejected the habeas standard also [*331] bore on appellate or habeas corpus proce- that it adopts today. Ante, at 316. 4 dures. Although it repeatedly emphasized the function of the reasonable-doubt standard as describing the requi- 3 The Court, relying on treatises that analyzed site "subjective state of certitude" of the "factfinder," 2 it the law in all 50 States as well as in the federal never mentioned the question of how appellate judges system, determined both that the reasona- are to know whether the trier of fact really was con- ble-doubt standard has prevailed at the trial level vinced beyond a reasonable doubt, or, indeed, whether "at least from our early years as a Nation" and the factfinder was a "rational" person or group of per- that it "is now accepted in common law jurisdic- sons. tions as the measure of persuasion by which the prosecution must convince the trier of all the es- 2 In In re Winship, 397 U. S., at 364, the Court sential elements of guilt." Id., at 361 (emphasis stated: "As we said in Speiser v. Randall, [357 added). See also id., at 372 (Harlan, J., concur- U.S. 513,] 525-526: 'There is always in litigation ring) ("It is only because of the nearly complete a margin of error, representing error in factfind- and long-standing acceptance of the reasona- ing, which both parties must take into account. ble-doubt standard by the States in criminal trials Where one party has at stake an interest of trans- that the Court has not before today had to hold cending value -- as a criminal defendant his lib- explicitly that due process, as an expression of erty -- this margin of error is reduced as to him by fundamental procedural fairness, requires a more the process of placing on the other party the bur- stringent standard for criminal trials than for or- den of . . . persuading the factfinder at the con- dinary civil litigation") (emphasis added). clusion of the trial of his guilt beyond a reasona- 4 The Court has undertaken no systematic ble doubt. Due process commands that no man analysis of the standards for reviewing the suffi- shall lose his liberty unless the Government has ciency of the evidence that prevail either in state borne the burden of . . . convincing the factfinder habeas corpus and other collateral proceedings or of his guilt.' To this end, the reasonable-doubt in state appellate courts. What sources I have standard is indispensable, for it 'impresses on the discovered suggest that "varied standards" are in trier of fact the necessity of reaching a subjective use and that each is "subject to shifting and elas- state of certitude of the facts in issue.' Dorsen & tic definitions." Winningham, The Dilemma of Rezneck, In Re Gault and the Future of Juvenile the Directed Acquittal, 15 Vand. L. Rev. 699, Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 705-706 (1962). See ALI Code of Criminal Pro- (1967)." (Emphasis added.) cedure, Commentary on § 321, pp. 961-962 (1930); Rules of Criminal Procedure 481 (c), 522 Later on the same page, the Court added: (a) and commentary, 10 U. L. A. (1974). Page 19 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

The Winship court relied on nine prior opinions of measured by the relatively strict appellate stand- this Court that bore directly on the issue presented. 397 ard used by the Federal Courts of Appeals. Pre- U.S., at 362. Here, the Court purportedly relies on two sumably the incidence of errors that survive that prior decisions, but as is pointed out, supra, at 329, nei- first level of review is even smaller. ther of these cases itself applied a "reasonable doubt" 7 Indeed, the Court makes light of Winship by appellate standard to overturn a conviction, neither pur- suggesting that, in the absence of its new habeas ported to be interpreting the Constitution, and neither procedure, the result of that case is simply "a trial expressed any view whatsoever on the appropriate ritual." Ante, at 316-317. Far more likely in my standard in collateral proceedings such as are involved in view is that the Court's difficult-to-apply but this case. 5 As the Court itself notes, we have instead largely unnecessary rule will itself result in a repeatedly endorsed the "no evidence" test, and have "collateral-attack ritual" that will undermine the continued to do so after Winship was decided. Vachon integrity of both the state and federal judiciaries. v. [*333] New Hampshire, 414 U.S. 478; Douglas v. See infra, at 336-339. Buder, 412 U.S. 430; Gregory v. Chicago, 394 U.S. 111; [*334] Having failed to identify the evil against Adderley v. Florida, 385 U.S. 39; Thompson v. Louis- which the rule is directed, and having failed to demon- ville, 362 U.S. 199. See also Clyatt v. United States, 197 strate how it follows from the analysis typically used in U.S. 207, 222. due process cases of this character, the Court places all of its reliance on a dry, and in my view incorrect, syllo- 5 It hardly bears repeating that habeas corpus is gism: If Winship requires the factfinder to apply a rea- not intended as a substitute for appeal, nor as a sonable-doubt standard, then logic requires a reviewing device for reviewing the merits of guilt determi- judge to apply a like standard. nations at criminal trials. See generally Stone v. Powell, 428 U.S. 465. Instead, it is designed to But, taken to its ultimate conclusion, this "logic" guard against extreme malfunctions in the state would require the reviewing court to "ask itself whether criminal justice systems. it believes that the evidence at the trial established guilt beyond a reasonable doubt." Woodby v. INS, 385 U.S. The primary reasoning of the Court in Winship is 276, 282 (emphasis added). The Court, however, rejects also inapplicable here. The Court noted in that case that this standard, as well as others that might be considered the reasonable-doubt standard has the desirable effect of consistent with Winship. For example, it does not re- significantly reducing the risk of an inaccurate factfind- quire the reviewing court to view just the evidence most ing and thus of erroneous convictions, as well as of in- favorable to the prosecution and then to decide whether stilling confidence in the criminal justice system. 397 that evidence convinced it beyond a reasonable doubt, U.S., at 363-364. See also id., at 370-372 (Harlan, J., nor whether, based on the entire record, rational triers of concurring). In this case, however, it would be impos- fact could be convinced of guilt beyond a reasonable sible (and the Court does not even try) to demonstrate doubt. Instead, and without explanation, it chooses a still that there is an appreciable risk that a factfinding made narrower standard that merely asks whether, "after view- by a jury beyond a reasonable doubt, and twice reviewed ing the evidence in the light most favorable to the [***583] by a trial judge in ruling on directed verdict prosecution, any rational trier of fact could have found and post-trial acquittal motions and by one or more lev- the essential elements of the crime beyond a reasonable els of appellate courts on direct appeal, as well as by two doubt." Ante, at 319. 8 It seems to me that if "logic" al- federal habeas courts under the Thompson "no evidence" lows [*335] [***584] this choice after Winship it rule, is likely to be erroneous. 6 Indeed, the very premise should also allow the presumption that the Court has of Winship is that properly selected [**2797] judges rejected -- that trial judges and juries will act rationally and properly instructed juries act rationally, that the for- and honestly in applying the reasonable-doubt standard, mer will tell the truth when they declare that they are at least so long as the trial is free of procedural error and convinced beyond a reasonable doubt and the latter will the record contains evidence tending to prove each of the conscientiously obey and understand the reasona- elements of the offense. ble-doubt instructions they receive before retiring to reach a verdict, and therefore that either factfinder will 8 So far as I can determine, this standard first itself provide the necessary bulwark against erroneous appeared in our jurisprudence in MR. JUSTICE factual determinations. To presume otherwise is to STEWART's opinion dissenting from the Court's make light of Winship. 7 denial of certiorari in Freeman v. Zahradnick, 429 U.S. 1111, 1112, 1113, 1114, 1116. At that 6 As I discuss earlier, see supra, at 329, the in- time, it gave the impression of being somewhat cidence of factual error at the trial level in federal narrower than -- if only because it was stated courts appears to be exceedingly low, even when Page 20 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

quite differently from -- the test used by the State court of competent jurisdiction." 28 U. S. C. § 2254 Courts of Appeals in reviewing federal convic- (d). See LaVallee v. Delle Rose, 410 U.S. 690. In any tions on direct appeal. See Curley v. United case, to assign a single federal district judge the respon- States, 81 U. S. App. D. C. 389, 392-393, 160 sibility of directly reviewing, and inevitably supervising, F.2d 229, 232-233 (1947). Although the Court the most routine work of the highest courts of a State can twice repeats the Freeman test, see ante, at 313, only undermine the morale and the esteem of the state 319, it now appears either to equate that standard judiciary -- particularly when the stated purpose of the with the -- in my view -- broader federal di- additional layer of review is to determine whether the rect-review standard, or to endorse both standards State's factfinder [***585] is "rational." 9 Such conse- despite their differences. See ante, at 318, and quences are intangible but nonetheless significant. nn. 11, 12. 9 In the past, collateral review of state pro- Time may prove that the rule the Court has adopted ceedings has been justified largely on the grounds today is the wisest compromise between one extreme (1) that federal judges have special expertise in that maximizes the protection against the risk that inno- the federal issues that regularly arise in habeas cent persons will be erroneously convicted and the other corpus proceeding, and (2) that they are less sus- extreme that places the greatest faith in the ability of fair ceptible than state judges to political pressures procedures to produce just verdicts. But the Court's against applying constitutional rules to overturn opinion should not obscure the fact that its new rule is convictions. See, e. g., Bartels, Avoiding a not logically compelled by the analysis or the holding in Comity of Errors, 29 Stan. L. Rev. 27, 30 n. 9 Winship or in any other precedent, or the fact that the (1976). Cf. Steffel v. Thompson, 415 U.S. 452, rule reflects a new policy choice rather than the applica- 464; Mitchum v. Foster, 407 U.S. 225, 242. But tion of a pre-existing rule of law. neither of these justifications has any force in the III present context. State judges are more familiar with the elements of state offenses than are fed- The Court cautions against exaggerating the signifi- eral judges and should be better able to evaluate cance of its new rule. Ante, at 321. It is true that in sufficiency claims. Moreover, of all decisions practice there may [**2798] be little or no difference overturning convictions, the least likely to be between a record that does not contain at least some evi- unpopular and thus to distort state decisionmak- dence tending to prove every element of an offense and a ing processes are ones based on the inadequacy record containing so little evidence that no rational fact- of the evidence. Indeed, once federal courts finder could be persuaded of guilt beyond a reasonable were divested of authority to second-guess state doubt. Moreover, I think the Court is quite correct when courts on Fourth Amendment issues, which are it acknowledges that "most meritorious challenges to far more likely to generate politically motivated constitutional sufficiency of the evidence undoubtedly state-court decisions, see Stone v. Powell, 428 will be recognized in the state courts." Ante, at 322. U.S. 465, a like result in this case would seem to But this only means that the new rule will seldom, if ev- be a fortiori. er, provide a convicted state prisoner with any tangible benefits. It does not mean that the rule will have no [*337] The potential effect on federal judges is impact on the administration of justice. On the contrary, even more serious. Their burdens are already so heavy I am persuaded that it will be seriously harmful both to that they are delegating to staff assistants more and more the state and federal judiciaries. work that we once expected judges to perform. 10 The new standard will invite an unknown number of state [*336] The Court indicates that the new standard prisoners to make sufficiency challenges that they would to be applied by federal judges in habeas corpus pro- not have made under the old rule. Moreover, because ceedings may be substantially the same as the standard the "rational trier of fact" must certainly base its deci- most state reviewing courts are already applying. Ante, sions on all of the evidence, the Court's broader standard at 322. The federal district courts are therefore being may well require that the entire transcript of the state directed simply to duplicate the reviewing function that trial be read whenever the factfinders' rationality is chal- is now being performed adequately by state appellate lenged under the Court's rule. 11 [**2799] Because this courts. In my view, this task may well be inconsistent task will confront the courts of appeals as well as district with the prohibition -- added by Congress to the federal courts, it will surely impose countless additional hours of habeas statute in order to forestall undue federal inter- unproductive labor on federal judges and their assistants. ference with state proceedings, see Wainwright v. Sykes, 12 The increasing volume [*338] of work of this char- 433 U.S. 72, 80 -- against overturning "a determination acter has [***586] already led some of our most dis- after a hearing on the merits of a factual issue, made by a tinguished lawyers to discontinue or reject service on the Page 21 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

federal bench. 13 The addition of a significant volume proceeding is held to determine the facts and law [*339] of pointless labor can only impair the quality of in a case, and the processes used in that proceed- justice administered by federal judges and thereby un- ing are fitted to the task in a manner not inferior dermine "the respect and confidence of the community in to those which would be used in a second pro- applications of the . . . law." In re Winship, 397 U.S., at ceeding, so that one cannot demonstrate that re- 364. litigation would not merely consist of repetition and second-guessing, why should not the first 10 For example, the heavy federal workload proceeding 'count'? Why should we duplicate has required the 13 regular and 7 senior judges on effort? After all, it is the very purpose of the the Ninth Circuit to hire 30 staff attorneys and 33 first go-around to decide the case. Neither it nor law clerks to assist them in their labors. any subsequent go-around can assure ultimate 11 Additional burdens will also be imposed if truth. If, then, the previous determination is to the Court's rule is extended to federal habeas be ignored, we must have some reasoned institu- proceedings reviewing federal criminal trials, as tional justification why this should be so. well as to ones reviewing state civil commitment "Mere iteration of process can do other kinds proceedings in which we have recently required of damage. I could imagine nothing more sub- at least the "clear and convincing" test to be ap- versive of a judge's sense of responsibility, of the plied as a matter of federal constitutional law. inner subjective conscientiousness which is so Addington v. Texas, 441 U.S. 418. essential a part of the difficult and subtle art of This Court's work load will also increase, of judging well, than an indiscriminate acceptance course, when its certiorari docket expands to ac- of the notion that all the shots will always be commodate the challenges generated by the called by someone else. Of course this does not Court's new rule. The effect will be even greater mean that we should not have appeals. As we if the Court's opinion is read to require state ap- shall see, important functional and ethical pur- pellate courts to apply the reasonable-doubt test poses are served by allowing recourse to an ap- on direct review and to require this Court to apply pellate court in a unitary system, and to a federal it when reviewing the decisions of those courts supreme court in a federal system. The acute on certiorari. question is the effect it will have on a trial judge 12 Professor Bator has persuasively explained if we then allow still further recourse where these how the law of diminishing returns inevitably purposes may no longer be relevant. What makes it unwise to have duplicative review pro- seems so objectionable is second-guessing merely cesses on the "merits" in criminal cases: for the sake of second-guessing, in the service of the illusory notion that if we only try hard enough "[If] a criminal judgment is ever to be final, we will find the 'truth.'" Bator, Finality in Crimi- the notion of legality must at some point include nal Law and Federal Habeas Corpus for State the assignment of final competencies to deter- Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963). mine legality. But, it may be asked, why should we seek a point at which such a judgment be- See also F. James, Civil Procedure 518 comes final? Conceding that no process can as- (1965). sure ultimate truth, will not repetition of inquiry 13 The testimony of Griffin Bell at his confir- stand a better chance of approximating it? In mation hearings for Attorney General is particu- view of the awesomeness of the consequences of larly relevant. When asked by Senator Scott of conviction, shouldn't we allow redetermination of Virginia why he had earlier resigned from his the merits in an attempt to make sure that no error seat on the Court of Appeals for the Fifth Circuit, has occurred? Judge Bell responded: "Surely the answer runs, in the first place, in "I found it not to be a rewarding experience terms of conservation of resources -- and I mean any longer. Whether it was because there was not only simple economic resources, but all of the no more excitement after the 1960's, or whether it intellectual, moral, and political resources in- was because the case load changed, but the work volved in the legal system. The presumption load was oppressive. I would not have minded must be, it seems to me, that if a job can be well the work load, but the character of the cases done once, it should not be done twice. If one set changed. It was almost like serving on a crimi- of institutions is as capable of performing the task nal court. I did not want to do that any longer." at hand as another, we should not ask both to do Hearings on the Prospective Nomination of Grif- it. The challenge really runs the other way: if a fin B. Bell, of Georgia, to be Attorney General, Page 22 443 U.S. 307, *; 99 S. Ct. 2781, **; 61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

before the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 27 (1977). 28 USCS 2254 For these reasons, I am unable to join the Court's US L Ed Digest, Habeas Corpus 17 gratuitous directive to our colleagues on the federal bench. L Ed Index to Annos, Habeas Corpus REFERENCES ALR Quick Index, Habeas Corpus 39 Am Jur 2d, Habeas Corpus 62 Federal Quick Index, Habeas Corpus 10 Federal Procedural Forms L Ed, Habeas Corpus 36:11 et seq. Annotation References: 11 Am Jur Pl & Pr Forms (Rev), Federal Practice and Lack of evidence supporting state conviction of criminal Procedure, Forms 41 et seq.; 13 Am Jur Pl & Pr Forms offense as violation of federal due process. 15 L Ed 2d (Rev), Forms 2181 et seq. 889; 80 ALR2d 1362. 20 Am Jur Trials 1, Federal Habeas Corpus Practice Page 1

Positive As of: Aug 02, 2017

FERNANDO LANCON, Appellant v. THE STATE OF TEXAS

NO. 0182-07

253 S.W.3d 699; 2008 Tex. Crim. App. LEXIS 640

May 14, 2008, Delivered

NOTICE: PUBLISH was presented to the jury and the jury was to decide upon the credibility of the testimony. The court of appeals SUBSEQUENT HISTORY: On remand at Lancon v. tried to satisfy the requirement with the proclamation State, 2008 Tex. App. LEXIS 8517 (Tex. App. San An- that the testimony was unreliable. But it was as equally tonio, Nov. 12, 2008) plausible that those witnesses were telling the truth as it was that they were lying when they testified. None of the PRIOR HISTORY: [**1] testimony definitively favored or contradicted the jury's ON STATE'S PETITION FOR DISCRETIONARY verdict. Because the jury was the sole judge of a wit- REVIEW FROM THE FOURTH COURT OF AP- ness's credibility, and the weight to be given the testi- PEALS WEBB COUNTY. mony, it could choose to believe some testimony and Lancon v. State, 220 S.W.3d 57, 2006 Tex. App. LEXIS disbelieve other testimony. 11028 (Tex. App. San Antonio, 2006) OUTCOME: The judgment of the court of appeals was CASE SUMMARY: vacated and the case was remanded for the court of ap- peals to consider the sufficiency of the evidence under the standard set forth in Watson v. State. PROCEDURAL POSTURE: Defendant was convicted of murder, attempted murder, and deadly conduct. The LexisNexis(R) Headnotes Fourth Court of Appeals, Webb County (Texas) re- manded the case for a new trial. The State filed a petition for discretionary review. Constitutional Law > Bill of Rights > Fundamental OVERVIEW: The State argued that the court of appeals Rights > Criminal Process > General Overview incorrectly applied the factual-sufficiency standard of Constitutional Law > Bill of Rights > Fundamental review. The court of criminal appeals agreed. The court Rights > Criminal Process > Right to Jury Trial of appeals correctly stated the standard set forth in Wat- Criminal Law & Procedure > Appeals > Standards of son, but incorrectly applied the standard in conducting Review > Substantial Evidence > Sufficiency of Evi- the factual-sufficiency review. There was no physical dence evidence linking defendant to the crime, and the State's [HN1] The Factual Conclusivity Clause of the Texas evidence boiled down to the testimony of the witnesses Constitution states that courts of appeals shall be conclu- and police officers. The evidence presented by the de- sive on all questions of fact brought before them on ap- fense also consisted of testimony, including defendant, peal or error. Tex. Const. art. V, § 6. This means that the his family members, and his co-defendant. All of that Texas Court of Criminal Appeals is not permitted to Page 2 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

conduct a de novo review of a court of appeals' factual flicting evidence, the jury's verdict is against the great sufficiency determination. However, the decision of the weight and preponderance of the evidence. court of appeals is not completely unreviewable, as the question of whether the court of appeals applied the cor- rect rule of law is a legal question. Therefore, review is Criminal Law & Procedure > Juries & Jurors > Prov- centered upon whether the court of appeals applied the ince of Court & Jury > Credibility of Witnesses correct standard of review and considered all of the rele- Criminal Law & Procedure > Juries & Jurors > Prov- vant evidence. The court of criminal appeals cannot ince of Court & Jury > Weight of the Evidence simply do its own factual-sufficiency analysis, it can Criminal Law & Procedure > Appeals > Standards of review only whether the court of appeals misapplied the Review > Substantial Evidence > Sufficiency of Evi- standard of review. In deciding whether the court of ap- dence peals applied the correct standard of review when it has [HN4] Tex. Code Crim. Proc. Ann. art. 36.13 and 38.04 reversed for factual-insufficiency, the court of criminal states that the jury is the exclusive judge of the facts and appeals must also examine whether the court of appeals of the weight given to testimony. Appellate courts should carried out the judicially-imposed requirements for safe- afford almost complete deference to a jury's decision guarding a defendant's right to trial by jury. These safe- when that decision is based upon an evaluation of credi- guards include deference to the jury's verdict and an ex- bility. The jury is in the best position to judge the credi- amination of all of the evidence. bility of a witness because it is present to hear the testi- mony, as opposed to an appellate court who relies on the cold record. Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of Evi- dence Evidence > Hearsay > Exceptions > Present Sense Im- [HN2] There are three basic ground rules that guide a pression > General Overview court of appeals in conducting a factual-sufficiency [HN5] Present sense impression statements are consid- analysis. First, the court of appeals must be cognizant of ered exceptionally reliable because they are safe from the fact that a jury has already passed on the facts and error of memory and there is little or no time for a calcu- must give due deference to the determinations of the lated misstatement, therefore, they are excluded from the jury. While the court of appeals may disagree with the hearsay rule. factfinder, it should afford the appropriate deference in order to avoid substituting its judgment for that of the jury. Second, the court of appeals' opinion should clearly Criminal Law & Procedure > Juries & Jurors > Prov- lay out and explain how the evidence supporting the ver- ince of Court & Jury > Credibility of Witnesses dict is too weak on its own, or state how the contradict- Criminal Law & Procedure > Juries & Jurors > Prov- ing evidence greatly outweighs evidence in support of ince of Court & Jury > Weight of the Evidence the verdict. This is particularly important because it as- Criminal Law & Procedure > Appeals > Standards of sists the Texas Court of Criminal Appeals in determining Review > Substantial Evidence > Sufficiency of Evi- whether the court of appeals applied the standard of re- dence view properly. Third, the appellate court should review [HN6] An appellate court must give deference to a jury's all of the evidence in a neutral light, as opposed to a le- decision regarding what weight to give contradictory gal-sufficiency review in which the evidence is viewed testimonial evidence because the decision is most likely in the light most favorable to the verdict. A verdict based on an evaluation of credibility and demeanor, should be set aside only if the evidence supporting the which the jury is in the better position to judge. verdict is so weak as to render the verdict clearly wrong or manifestly unjust. COUNSEL: For APPELLANT: J. Eduardo Pena, Lare- do, TX.

Criminal Law & Procedure > Appeals > Standards of For STATE: Norberto Cardenas, III, ASST. D.A., Lare- Review > Substantial Evidence > Sufficiency of Evi- do, TX; Jeffrey L. Van Horn, STATE'S ATTORNEY, dence Austin, TX. [HN3] There are two ways in which the evidence may be insufficient. The first is that the evidence supporting the JUDGES: MEYERS, J., delivered the opinion of the verdict, though legally sufficient, is nonetheless too weak Court, in which KELLER, P.J., KEASLER, HERVEY, to support it. The second is that, when considering con- and COCHRAN, JJ., joined. JOHNSON, J., filed a dis- Page 3 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

senting opinion, in which PRICE and HOLCOMB, JJ., of the car to fight Dominguez. A second person, holding joined. WOMACK, J., dissented. a gun, also got out of the car. This second individual fired two shots in the direction of Dominguez, Diaz, and OPINION BY: MEYERS Soliz, who were standing in front of the Soliz house. When the shooting started, Dominguez ran toward the OPINION back of the house, while Soliz and Diaz stayed in the front yard. After firing two shots, the shooter jumped [*701] OPINION back into the car, as did Villareal, and the car sped away. This entire incident lasted for less than one minute. Appellant, Fernando Lancon, stood trial with two While neither of the shots hit the three [*702] boys in co-defendants, Alfonoso Villareal and Jorge Zuniga. the front yard, one bullet went through the wall of the Appellant was convicted of one count each for murder, Soliz residence and hit and killed eleven-month-old Fed- attempted murder, and deadly conduct. The jury assessed erico Soliz III. punishment at twenty-five years', fifteen years', and ten years' confinement, respectively. Villareal was also The first 911 call the police received was made at found guilty, but Zuniga was acquitted. Appellant ap- 9:20 p.m. When the Detectives arrived at the scene at pealed the convictions based on factual insufficiency of 9:30 p.m., they asked Dominguez who had shot at him, the evidence to sustain his convictions, the failure of the and Dominguez told them that the shooter was [**4] prosecutor to disclose exculpatory evidence, and the im- Appellant, a cousin of Villareal. A second 911 call was proper admission of two photographs into evidence. The received at 9:26 p.m., in which the caller said that the court of appeals held that it was not an abuse of discre- suspects might be at 1418 Kearney Street, the address at tion to admit the two photographs into evidence, and that which Appellant lived with his grandmother. Officers Appellant failed to establish that it was reasonably prob- were sent to the address, but they did not find Appellant able that the outcome of the trial would have been dif- or the maroon vehicle. While officers were at the scene ferent had the prosecutor made a timely disclosure of of the shooting, Dominguez saw Appellant drive by in a [**2] the alleged exculpatory evidence. Lancon v. State, white Cadillac and informed the officers. Roughly four 220 S.W.3d 57 (Tex. App. -- San Antonio, 2006)(mem. minutes after that, Investigator Rodriguez noticed that op.). The court of appeals also held that the evidence was the white Cadillac had stopped in the street about a half a factually insufficient to support the convictions and re- block away from the scene. Police approached the Ca- manded the case for a new trial. The State filed a petition dillac and detained Appellant and Jorge Zuniga. Detec- for discretionary review, which we granted to consider tive Cantu administered gunshot-residue tests on both whether the court of appeals correctly applied the factu- Appellant and Zuniga and took the clothing that they al-sufficiency standard of review. We determine that the were wearing. standard was not correctly applied. We vacate the judg- Dominguez and Diaz gave videotaped statements to ment of the court of appeals and remand the case for the the police. They were also shown photo lineups and court of appeals to consider the sufficiency of the evi- asked if Appellant was in the lineup. Both identified dence under the standard set forth in Watson v. State, 204 Appellant correctly. Soliz also told police that Appellant S.W.3d 404 (Tex. Crim. App. 2006). was the shooter, but did not identify him in a lineup. Po- lice were never able to locate the maroon vehicle, nor did FACTS they recover the weapon that was used in the shooting. We first lay out the undisputed facts of this case. On Although Zuniga's gunshot-residue [**5] came back June 11, 2003, Appellant's co-defendant, Alfonso Vil- positive, Appellant's gunshot-residue test came back lareal, was at his neighborhood recreation center. Anoth- negative, so there was no physical evidence linking Ap- er boy, Hector Dominguez, was also visiting the rec cen- pellant to the crime. ter with his friend, Daniel Diaz. While at the rec center, The rest of the facts surrounding the case are con- Dominguez started a verbal altercation with Villareal. tested, as Appellant claimed that his younger brother, When the argument was over, Villareal made a phone Eduardo, committed the crime. At trial, both Dominguez call and was soon picked up in a maroon car. Shortly and Diaz testified, as did three girls who were witnesses thereafter, Dominguez and Diaz left the rec center and to the shooting and several police officers and detectives. [**3] began walking to Freddie Soliz's house, which was Dominguez testified that Villareal exited the maroon approximately one block away. When Dominguez and vehicle and asked him if he wanted to fight, and when Diaz arrived at the Soliz house, Freddie Soliz came out Appellant got out of the car, Villareal ordered Appellant to the sidewalk in front of the house to talk to the two to shoot. Although Dominguez ran either when the gun boys. A maroon or purple car with three people inside was cocked or when the shooting began, he testified that stopped in front of the Soliz house, and Villareal got out he saw Appellant shoot the gun. He also stated that he Page 4 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

was shown three lineups on the night of the shooting. At Fernandez's home and weapons were seized, although first Dominguez testified that he did not recognize any- [**8] none matched the murder weapon. one, but he later stated that he identified Appellant. All three defendants, including Appellant, testified When Dominguez was asked about the appearance of the at trial. Appellant and Zuniga testified about the events shooter, he first said that he didn't remember what the leading up to their detention and said that they were to- shooter was wearing, but moments later he said that Ap- gether on that evening but that neither of them had been pellant had been wearing a white shirt, blue shorts, and a with Villareal or involved in the shooting. Appellant also blue New York Yankees cap and had held the gun in his testified that he and his brother, Eduardo, had been raised right hand. [**6] Dominguez also admitted that he in separate households, and he demonstrated that he was smoked marijuana almost every day, including the day of left-handed by signing his name in front of the jury. Vil- the shooting. However, Dominguez testified that he was lareal testified that Eduardo was the shooter, but that he 100% sure that Appellant was the shooter and not his did not know that Eduardo had a gun and he did not or- brother, Eduardo, whom Dominguez also knew. der Eduardo to shoot at Dominguez and Diaz. Villareal Daniel Diaz testified that he knew Appellant be- admitted that he fled to Mexico following the shooting. cause he had seen him before, but that he did not know Additionally, several family members of Appellant Villareal prior to the shooting. Diaz also said that he did and Villareal testified, including Jose Gonzalez, the not see who was driving the vehicle and that he identi- cousin of Appellant, Eduardo, and Villareal, who testi- fied Appellant and Villareal from lineups. The day after fied that he was the driver and Eduardo was the shooter. the shooting, Diaz identified Zuniga as the driver. Diaz Gonzalez stated that he was told by his Aunt Lydia to testified that the shooter was wearing a white shirt and pick Villareal up at the rec center because Villareal was pants, but no baseball cap. He also admitted on the stand getting beaten up and Eduardo came along. Gonzalez that, while he could not be positive that he smoked ma- said that, after he and Eduardo picked up Villareal, they rijuana the day of the shooting, it was possible because were driving back home when Eduardo and Villareal he often smoked marijuana. jumped [**9] out of the car, argued with some boys on Kimberly Sanchez, a girl who was also at the rec the street, and then Eduardo started shooting. Gonzalez center on the day of the shooting, [*703] testified that testified that he did not know that Eduardo had a gun and she witnessed the argument between Dominguez and that after the shooting he dropped both Eduardo and Vil- Villareal. She said that, after the argument, she saw Vil- lareal off at his aunt's house. He also said that he had not lareal make a phone call and heard him ask for "Moiky," talked to Eduardo since that evening and thought that the Appellant's nickname. Sanchez testified that she did not police would arrest Eduardo because he heard that they know who Moiky was or if Villareal even spoke to him were looking for Villareal. on the phone. [**7] She had left the rec center with her Gonzalez's mother, Ava Maria Gonzalez, testified friends, Monica and Melissa Soliz, and had started that she owned the maroon car and that her son had walking to their house when she saw the maroon car stop driven it on June 11. Mrs. Gonzalez admitted that when in front of the Soliz house and saw someone in a white she was questioned by the police, she told them that her shirt get out of the car. Sanchez testified that when they son had arrived home at 7:45 p.m. and had never left the heard the gunshots, she and her friends ran back to the house after that. rec center. Several aunts of Appellant and Eduardo testified that The police officers and detectives testified about on the day of the shooting and in the days after, they their investigation of the case, including their arrival at heard Eduardo confess that he had been the shooter, but the scene and the lineups shown to Dominguez and Diaz. that he thought he had shot one of the boys in front of the Detective Cantu testified that his theory of what hap- house. One aunt even [*704] told the police that she pened in the 14 minutes between the first 911 call and believed that Eduardo had wrapped the gun in a towel Appellant and Zuniga driving by in the Cadillac was that and hidden it, which resulted in the subsequent search of the three men drove away from the shooting, Appellant Lydia Fernandez's home. Villareal's mother, Yolanda, dropped Villareal off, Appellant and Zuniga disposed of testified that she also heard Eduardo admit to the shoot- the car and their clothing, Appellant washed his hands, ing on two separate [**10] occasions, and she gave and then Appellant and Zuniga got in Appellant's white Detective Cantu a statement about this five days after the Cadillac to return to the scene. Detective Cantu admitted shooting. that he had no evidence to prove his theory. Detective Cantu also testified about a search warrant that was exe- COURT OF APPEALS DECISION cuted at the home of Lydia Fernandez, an aunt of Vil- lareal and Appellant. Several people were arrested at On appeal, Appellant argued that the evidence to support his conviction was factually insufficient, that the Page 5 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

prosecutor failed to disclose exculpatory evidence, and a defendant's right to trial by jury. These safeguards in- that the trial judge abused his discretion by admitting two clude deference to the jury's verdict and an examination photographs into evidence. The court of appeals deter- of all of the evidence. Roberts v. State, 221 S.W.3d 659 mined that the evidence was factually insufficient to (Tex. Crim. App. 2007). support Appellant's convictions. The court also held that [HN2] There are three basic ground rules that guide Appellant failed to show that it was reasonably probable a court of appeals in conducting a factual-sufficiency that the trial outcome would have been different had the analysis. First, the court of appeals must be cognizant exculpatory evidence been properly disclosed, and that it [*705] of the fact that a jury has already passed on the was not an abuse of discretion to admit the photographs facts and must give due deference to the determinations into evidence. of the jury. While the court of appeals may disagree with In addressing its decision that the evidence was fac- the factfinder, it should afford the appropriate deference tually insufficient, the court laid out, verbatim, the in order to avoid substituting its judgment for that of the standard of review discussed in Watson. The court then jury. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. stated that its decision was based on the "objective unre- 1996). Second, the court of appeals' [**13] opinion liability of Dominguez's and Diaz's testimony that Fer- should clearly lay out and explain how the evidence nando Lancon was the shooter coupled with the weight supporting the verdict is too weak on its own, or state and quantity of the evidence that the shooter was not how the contradicting evidence greatly outweighs evi- Fernando but Eduardo Lancon." Lancon v. State, 220 dence in support of the verdict. This is particularly im- S.W.3d 57, 67 (Tex. App. -- San Antonio, 2006)(mem. portant because it assists this Court in determining [**11] op.). The court detailed the discrepancies in whether the court of appeals applied the standard of re- Dominguez's and Diaz's testimony and explained that view properly. Third, the appellate court should review their conflicting testimony, coupled with the unvarying all of the evidence in a neutral light, as opposed to a le- testimony of Appellant's defense witnesses, led them to gal-sufficiency review in which the evidence is viewed find that vacating Appellant's conviction and remanding in the light most favorable to the verdict. Watson v. State, the cause for a new trial was "necessary to arrest the oc- 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). A verdict currence of a manifest injustice." 220 S.W.3d at 68, should be set aside only if the evidence supporting the quoting Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. verdict is so weak as to render the verdict clearly wrong App. 2000). or manifestly unjust. Cain, 958 S.W.2d at 406.

ANALYSIS Review of the Court of Appeals' Decision As we explained in Goodman v. State, 66 S.W.3d Factual Sufficiency Review, Generally 283 (Tex. Crim. App. 2001), [HN3] there are two ways in [HN1] The Factual Conclusivity Clause of the Texas which the evidence may be insufficient. The first is that Constitution states that "[courts of appeals] shall be con- the evidence supporting the verdict, though legally suffi- clusive on all questions of fact brought before them on cient, is nonetheless too weak to support it. The second is appeal or error." TEX. CONST. art. V, §6. We have pre- that, when considering conflicting evidence, the jury's viously determined that this means that we are not per- verdict is against the great weight and preponderance of mitted to conduct a de novo review of a court of appeals' [**14] the evidence. In this case, the court of appeals factual sufficiency determination. Cain v. State, 958 vacated the conviction and remanded the cause for a new S.W.2d 404, 408 (Tex. Crim. App. 1997). However, the trial based upon the conflicting evidence. decision of the court of appeals is not completely unre- To support this conclusion, the court of appeals ac- viewable, as the question of whether the court of appeals curately stated the standard of review and addressed all applied the correct rule of law is a legal question. Id. of the evidence. The court of appeals included a detailed Therefore, our review is centered upon whether the court description of the undisputed facts, as well as the evi- of appeals applied the correct standard of review and dence supporting and contrary to the conviction. Lancon, considered [**12] all of the relevant evidence. We 220 S.W.3d at 59-67. However, the court of appeals cannot simply do our own factual-sufficiency analysis, failed to adhere to the three factual-sufficiency ground we can review only whether the court of appeals misap- rules described above. plied the standard of review. Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). In deciding whether the The majority of the evidence that the court of ap- court of appeals applied the correct standard of review peals points to is contradictory witness testimony, and when it's reversed for factual-insufficiency, this Court although the evidence is compelling, the jury is the sole must also examine whether the court of appeals carried judge of what weight to give such testimony. See [HN4] out the judicially-imposed requirements for safeguarding TEX. CRIM. PROC. CODE ANN. art. 36.13 and 38.04 Page 6 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

(stating that the jury is the exclusive judge of the facts [The State]: Okay. And what hap- and of the weight given to testimony). Appellate courts pened--what were your observations when you should afford almost complete deference to a jury's deci- got there to the house? sion when that decision is based upon an evaluation of [Cantu]: The three individuals that were credibility. The jury is in the best position to judge the there, one was Hector Dominguez, Fernando credibility of a witness because it is present to hear the Soliz, and Daniel Diaz. Daniel Diaz, I want to say testimony, as opposed to an appellate court [**15] who was in shock. He was just standing there. Fer- relies on the cold record. See Marshall v. State, 210 nando Soliz was screaming that the baby--the S.W.3d 618, 625 (Tex. Crim. App. 2006). baby was shot. He was shot. I tried to calm him The court of appeals determined that Dominguez's down. Hector Diaz [sic] was excited, you know. and Diaz's testimony was "objectively unreliable," and He was--I couldn't understand. They were all concluded that it was not unreasonable to distrust their talking at the same time. eyewitness testimony given the circumstances surround- [The State]: Did you ask him at any--did you ing the shooting. There were many inconsistencies with- ask him any questions? in Dominguez's and Diaz's testimony, as well as incon- sistencies between their testimony. Dominguez contra- [Cantu]: I asked him what happened and he dicted himself several times. He testified that he did not said that he got shot at, and then said--I told him-- remember what Appellant was wearing, and then mo- *** ments later gave a description of the clothing. Dominguez also had trouble describing his actions when [Cantu]: I told him, Who did this to you? the shooting started, saying that he started running when Who shot? And he said Fernando Lancon. the gun was cocked, while still maintaining that he saw Appellant actually pull the trigger when he was running *** toward the back of the house with his back turned. [The State]: When you showed lineups to the [*706] The descriptions given by Dominguez and Diaz witnesses how was Fernando Lancon identified? were also inconsistent, with Dominguez declaring that he remembered Appellant wearing a baseball cap and Diaz [Cantu]: He was identified--Hector testifying that the shooter was not wearing a baseball Dominguez knew Fernando Lancon. Okay. He cap. In addition, Kimberly Sanchez did not include a already knew who he was, and-- baseball cap in her description of the [**16] shooter. *** Both Dominguez and Diaz admitted to smoking mariju- ana often, Dominguez even testified that he had smoked [Cantu]: So he knew who was at the scene, marijuana on the day of the shooting. And Diaz admitted and he mentioned at the time when I arrived that on cross-examination that he might have mistaken Ap- Fernando Lancon was the one who shot at him. pellant for his brother, Eduardo. As part of the evidence As we said before, there was no physical evidence contrary to the verdict, the court of appeals explained linking Appellant to the crime, and the State's evidence that the testimony of the defense witnesses was con- boiled [**18] down to the testimony of the witnesses sistent, and that two of the witnesses admitted their own and police officers. The evidence presented by the de- complicity in the crime. However, the court of appeals fense also consisted of testimony, including Appellant, seems to have failed to consider evidence that supported his family members, and his co-defendant. All of this the jury's verdict. One example of this is Detective was presented to the jury and the jury is to decide upon Cantu's testimony that Dominguez said Appellant was the credibility of the testimony. As we explained in State the shooter mere minutes after the shooting. 1 As a matter v. Johnson, 23 S.W.3d 1 (Tex. Crim. App. 2000), [HN6] of law, evidence of this sort is considered especially an appellate court must give deference to a jury's deci- trustworthy given the surrounding circumstances. See sion regarding what weight to give contradictory testi- Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. monial evidence because the decision is most likely 1992)(explaining that [HN5] present sense impression based on an evaluation of credibility and demeanor, statements are considered exceptionally reliable because which the jury is in the better position to judge. they are safe from error of memory and there is little or no time for a calculated misstatement, therefore, they are Under Watson, we further explained that there must excluded from the hearsay rule). be an objective basis in the record in order to say that the great weight and preponderance of the evidence contra- 1 The following is Detective Cantu's testimony dicts the jury's verdict. 204 S.W.3d at 417. The court of regarding his arrival [**17] on the scene: appeals tries to satisfy this requirement with the procla- mation that Dominguez's and Diaz's [*707] testimony Page 7 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

is unreliable. But it is as equally plausible that termining only whether the direct-appeal court properly Dominguez and Diaz were telling the truth as it is they applied 'rules of law.'" Roberts v. State, 221 S.W.3d 659, were lying when they testified. It is for the jury to deter- 662-63 (Tex. Crim. App. 2007). Our disagreement with mine if they believe that Dominguez and Diaz are lying the court of appeals' factual-sufficiency decision is or telling the truth. None [**19] of the testimony at trial simply not a basis for reversing that decision. definitively favors or contradicts the jury's verdict, it all bears on credibility. Because the jury is the sole judge of 1 Watson v. State, 204 S.W.3d 404 (Tex. Crim. a witness's credibility, and the weight to be given the App. 2006). See also Marshall v. State, 210 testimony, it may choose to believe some testimony and S.W.3d 618, 625 (Tex. Crim. App. 2006). disbelieve other testimony. See Margraves v. State, 34 Although review of factual sufficiency has been, S.W.3d 912, 919 (Tex Crim. App. 2000). A decision is [**21] and continues to be, subject to much dispute, in not manifestly unjust solely because the court of appeals Watson a majority of this Court reiterated that, in order would have resolved the conflicting evidence in a dif- for an appellate court to reverse for factually insuffi- ferent way. Watson, at 417. ciency, it must be able to say, with some objective basis in the record, that the great weight and preponderance of CONCLUSION the evidence contradicts the jury's guilty verdict. In this The court of appeals correctly stated the standard set case, that is precisely what the court of appeals did. In its forth in Watson, but incorrectly applied the standard in section entitled "Evidence Contrary to the Verdict," it conducting the factual-sufficiency review. Because the detailed a great deal of evidence, which adequately pro- evidence in the case was largely based on a determina- vides that objective basis for overturning the jury's ver- tion of the credibility of the witnesses, and the court of dict. Lancon, 220 S.W.3d at 63-66. 2 appeals' factual-sufficiency review failed to defer to the jury's verdict, we vacate the decision of the court of ap- 2 "These weaknesses and inconsistencies in peals and remand this cause for the court to conduct a Dominguez's and Diaz's testimony certainly de- factual sufficiency review in accordance with this opin- tract from its reliability. But, standing alone, ion. these factors would not convince us that the evi- dence is factually insufficient to support the jury's Meyers, J. implicit finding that Fernando, rather than [his Delivered: May 14, 2008 brother] Eduardo, was the shooter. . . . But what does convince us that the evidence is factually Publish insufficient to support the jury's verdict is view- ing the eyewitnesses' testimony-complete with DISSENT BY: JOHNSON the weaknesses, inconsistencies, and equivoca- tions outlined above-in light of the consistent, DISSENT detailed testimony set [**22] forth above from JOHNSON, J., filed a dissenting opinion in which the defense witnesses, including two of the three PRICE and HOLCOMB, JJ., joined. participants who admitted their complicity in the shooting . . . and identified Eduardo Lancon as DISSENTING OPINION the shooter, and the aunts of both Eduardo and The court of appeals, after thoroughly [**20] re- Fernando . . ., each of whom testified that she viewing all of the evidence in a neutral light, concluded heard Eduardo admit to having been the shooter that the jury's determination of guilt was "against the moments after the shooting took place. Both fac- great weight and preponderance of the evidence," and tors, taken together, convince us that reversing therefore reversed the trial court's judgment and re- the judgment against Fernando Lancon and or- manded the cause for a new trial. Lancon v. State, 220 dering a new trial is 'necessary to arrest the oc- S.W.3d 57 (Tex. App.--San Antonio 2006). Because I currence of a manifest injustice.'(Cite omitted.)" believe that the court of appeals correctly stated and Other testimony indicated that the shooter, like properly applied the standard of review, I dissent. Eduardo, was right-handed, while Fernando is left-handed. "The factual-conclusivity clause in Article V, § 6, of the Texas Constitution, makes a direct-appeal court's [*708] The majority opinion asserts that, because factual-sufficiency decision final and conclusive upon the court of appeals determined that the testimony of two this Court. Watson, 204 S.W.3d at 439. 1 This Court's of the state's witnesses was objectively unreliable, it had review of a direct-appeal court's factual-sufficiency deci- "concluded that it was not unreasonable to distrust their sion is limited by the factual-conclusivity clause to de- eyewitness testimony given the circumstances surround- Page 8 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **

ing the shooting." Lancon v. State, No. PD-0182-07 viewing the factual sufficiency of evidence and effec- (Tex. Crim. App. delivered , 2008, slip op. at 12). tively precludes any sufficiency review when the jury's The court of appeals's opinion did not articulate any par- decision is based upon an evaluation of credibility, which ticular "distrust" of those witnesses, but rather deter- virtually each and every jury verdict is to some extent. mined, after reviewing all of the evidence in the requisite "The legal and factual sufficiency standards both require [**23] neutral light, that the jury's implicit finding in its the reviewing court [*709] to consider all of the evi- guilty verdicts that appellant, rather than his brother Ed- dence. . . . The difference between the two standards is uardo, was the shooter, was greatly outweighed by the that the former requires the reviewing court to defer to contrary evidence. It therefore concluded that the evi- the jury's credibility and weight determinations while the dence of appellant's guilt was factually insufficient. latter permits the reviewing court to substitute its judg- Lancon, 220 S.W.3d at 66-67. It reached this conclusion ment for the jury's on these questions 'albeit to a very after viewing the state's eyewitness testimony, complete limited degree.'" Marshall v. State, 210 S.W.3d 618, 625 with weaknesses, inconsistencies, and equivocations, (Tex. Crim. App. 2006)(quoting Watson at which it detailed in its opinion, in light of the consistent, 417)(emphasis in original). detailed testimony from the defense witnesses, which it also detailed in its opinion. Id. at 68. It concluded "that 3 The majority [**25] opinion asserts that "it reversing the judgment against [appellant] and ordering a is equally plausible that [two of the state's wit- new trial is 'necessary to arrest the occurrence of a mani- nesses] were telling the truth as it is that they fest injustice.'" Id., quoting Johnson v. State, 23 S.W.3d were lying when they testified[,]" and that "it is 1, 9 (Tex. Crim. App. 2000). for the jury to determine if they [sic] believe that [those two witnesses] are lying or telling the As the majority opinion concedes, "the court of ap- truth." Id., slip op. at 14. peals accurately stated the standard of review and ad- dressed all of the evidence" and "included a detailed de- The analysis by the court of appeals is very much in scription of the undisputed facts, as well as the evidence line with our prior factual-sufficiency case law, and we supporting and contrary to the conviction." Lancon v. should respect its decision, especially in light of the fact State, No. PD-0182-07, slip op. at 11). The majority also that its factual-sufficiency decision is final and conclu- notes that "[a]ppellate courts should afford almost sive upon this Court pursuant our constitution's factu- [**24] complete deference to a jury's decision when that al-conclusivity clause. Because the court of appeals decision is based upon an evaluation of credibility." 3 Id. properly applied our rules of law and because this Court But "almost complete" is not "complete" or "total," even has no jurisdiction to re-evaluate factual sufficiency, I when the jury's decision is based upon a credibility eval- respectfully dissent. uation. The majority opinion seems to say that, from now Filed: May 14, 2008 on, the level of deference due a jury's decision will be total deference when the decision is based on an evalua- Publish tion of credibility. This eviscerates our case law for re- Page 1

SEDRICK TYRONE LEE, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-06-00240-CR

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

239 S.W.3d 873; 2007 Tex. App. LEXIS 8407

October 24, 2007, Opinion Delivered October 24, 2007, Opinion Filed

NOTICE: PUBLISH Ann. § 1.07(17)(A) (Supp. 2006), even though the gun was never recovered, because the victim testified that SUBSEQUENT HISTORY: Petition for discretionary defendant used a gun and officers heard the gun shots review refused by In re Lee, 2008 Tex. Crim. App. LEXIS and observed a gun in the hands of the person chasing 206 (Tex. Crim. App., Feb. 6, 2008) the victim. The evidence was also legally sufficient to support a finding that defendant intentionally, knowing- PRIOR HISTORY: [**1] ly, or recklessly caused bodily injury by shooting a vic- From the 54th District Court McLennan County, tim. The jury could reasonably infer that the wound from Texas. Trial Court No. 2004-1281-C. a bullet that entered the back of the victim's calf and ex- ited through the front caused the victim to suffer physical DISPOSITION: Affirmed. pain from the injury.

CASE SUMMARY: OUTCOME: The court affirmed the trial court's judg- ment.

PROCEDURAL POSTURE: A jury of the 54th District LexisNexis(R) Headnotes Court McLennan County, Texas, convicted defendant of aggravated assault under Tex. Penal Code Ann. §§ 22.02(a)(2), 22.01(a)(1) (Supp. 2006) and sentenced him to 15 years in prison. Defendant appealed. Criminal Law & Procedure > Accusatory Instruments > Indictments > General Overview OVERVIEW: Defendant argued that the issue of guilt Criminal Law & Procedure > Trials > General Over- was not joined because his plea of not guilty was not view entered before the jury. The court found that defendant Criminal Law & Procedure > Appeals > Reviewability did not preserve that issue because at no time did he ob- > Preservation for Review > Requirements ject to the trial court's failure to enter the plea before the [HN1] Tex. Code Crim. Proc. Ann. art. 36.01 (2007) jury or request that the indictment be read, a plea en- requires that the indictment be read and the plea entered tered, and the evidence reintroduced. The court also held in the jury's presence. Tex. Code Crim. Proc. Ann. art. that the victim's testimony was legally sufficient evi- 36.01 (2007). Otherwise, the issue of guilt is not joined. dence to support the identification of defendant as the This rule is intended to inform the accused of the charges shooter. The evidence was also legally sufficient to sup- against him, to inform the jury of the charge at issue, and port a deadly weapon finding under Tex. Penal Code to allow the jury to hear the defendant refute or admit the Page 2 239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **

charge. Failure to follow this rule may be corrected by Criminal Law & Procedure > Criminal Offenses > reading the indictment to the jury and entering the de- Crimes Against Persons > Assault & Battery > General fendant's plea, followed by the State's reintroduction of Overview the evidence or the parties stipulation to the evidence. If [HN6] "Bodily Injury," in the context of criminal assault, the error is discovered after trial, error is preserved means physical pain, illness, or any impairment of phys- through a motion for new trial, bill of exception, or mo- ical condition. Tex. Penal Code Ann. § 1.07(a)(8) (Supp. tion to arrest judgment. 2006).

COUNSEL: For APPELLANT/RELATOR: Richard G. Criminal Law & Procedure > Accusatory Instruments Ferguson, ATTORNEY at LAW, Waco, TX. > Indictments > General Overview Criminal Law & Procedure > Trials > General Over- For APPELLEE/RESPONDENT: John W. Segrest, view McLENNAN COUNTY DISTRICT ATTORNEY, Wa- Criminal Law & Procedure > Appeals > Reviewability co, TX. > Preservation for Review > Requirements [HN2] There are two relatively small categories of errors JUDGES: Before Chief Justice Gray, Justice Vance, and to which a contemporaneous objection is not required to Justice Reyna. Chief Justice Gray concurs in the judg- preserve error: violations of rights which are waivable ment but a separate opinion will not be issued. only and denials of absolute systemic requirements. These errors may be raised for the first time on appeal. A OPINION BY: FELIPE REYNA complaint under Tex. Code Crim. Proc. Ann. art. 36.01 (2007) does not fit within these small categories; thus, an OPINION objection is required to preserve error. [*875] A jury convicted Sedrick Tyrone Lee of aggravated assault and sentenced him to fifteen years in prison. 1 On appeal, Lee argues that: (1) the issue of guilt Criminal Law & Procedure > Appeals > Standards of was not joined at trial; and (2) the evidence is legally Review > Substantial Evidence > General Overview insufficient to support his conviction. We affirm. [HN3] Under legal sufficiency review, the court deter- mines whether, after viewing all the evidence in the light 1 Lee was also charged with attempted murder, most favorable to the verdict, any rational trier of fact but the State elected to pursue the aggravated as- could have found the essential elements of the offense sault charge alone. beyond a reasonable doubt. The court does not resolve any conflict of fact or assign credibility to the witnesses, JOINDER OF GUILT as this was the function of the trier of fact. Inconsisten- cies in the evidence are resolved in favor of the verdict. In his first issue, Lee contends that the issue of guilt was not joined because his plea of "not guilty" was not entered before the jury. Criminal Law & Procedure > Criminal Offenses > [HN1] Article 36.01 of the Code of Criminal Proce- Crimes Against Persons > Assault & Battery > Aggra- dure requires that the indictment be read and the plea vated Offenses > Elements entered in the jury's presence. See TEX. CODE CRIM. [HN4] A person commits aggravated assault if he inten- PROC. ANN. art. 36.01 (Vernon 2007). Otherwise, the tionally, knowingly, or recklessly caused bodily injury to issue of guilt is not joined. See Martinez v. State, 155 another and used or exhibited a deadly weapon during S.W.3d 491, 495 (Tex. App.--San Antonio 2004, no pet.). commission of the assault. Tex. Penal Code Ann. § This rule is intended to "inform the accused of the 22.02(a)(2) (Supp. 2006); Tex. Penal Code Ann. § charges against him, to inform the jury of the charge 22.01(a)(1) (Supp. 2006). [**2] at issue, and to allow the jury to hear the defendant refute or admit the charge." Id. Failure to follow this rule may be corrected by reading the indictment to the jury Criminal Law & Procedure > Criminal Offenses > and entering the defendant's plea, followed by the State's Weapons > Definitions reintroduction of the evidence or the parties' stipulation [HN5] A firearm is a "deadly weapon." Tex. Penal Code to the evidence. See Limon v. State, 838 S.W.2d 767, Ann. § 1.07(a)(17)(A) (Supp. 2006). 768-69 (Tex. App.--Corpus Christi 1992, pet. ref'd) (cit- ing Warren v. State, 693 S.W.2d 414, 416 (Tex. Crim. App. 1985)). If the error is discovered after trial, error is preserved through a motion for new trial, bill of excep- Page 3 239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **

tion, or motion to arrest judgment. See Martinez, 155 In Hervey v. State, we addressed a similar issue, S.W.3d at 495 (citing Warren, 693 S.W.2d at 416). namely whether "fundamental error was committed when the indictment was not read to the jury prior to the trial At the beginning of the guilt/innocence phase, the on punishment." 3 131 S.W.3d 561, 565 (Tex. App.--Waco State read the indictment and the trial court asked for 2004, no pet.). We noted that [HN2] "[t]here are two Lee's plea. Lee responded, "I plead the 5th, Your Honor." relatively small categories of errors to which a contem- Trial then proceeded to opening arguments. After the poraneous objection is not [**5] required: violations of State rested, the trial court made the following statement 'rights which are waivable only' and denials of 'absolute outside the presence and hearing of the jury: systemic requirements.'" Id. (quoting Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003)). These Before you put anything else on the errors may be raised for the first time on appeal. Id. An record there's one thing I -- when I asked article 36.01 complaint does not fit within these small the defendant this morning how he plead, categories; thus, an objection is required to preserve er- whether he plead guilty or not guilty, I ror. See id. at 565-66 (citing Cantu v. State, 939 S.W.2d thought he said, not guilty, but I just didn't 627, 646 (Tex. Crim. App. 1996)); see also Cox v. State, hear [**3] it. The court reporter has told 422 S.W.2d 929, 930 (Tex. Crim. App. 1968) (absent an me and the parties that he said that he objection, a violation of article 36.01 is waived); Robin- took the 5th Amendment. The court is en- son v. State, No. 05-01-00702-CR, 2002 Tex. App. LEXIS tering a plea of not guilty on his behalf. 615, at *2 (Tex App.--Dallas Jan. 30, 2002, no pet.) (not designated for publication) (argument that "trial court committed fundamental error by failing to read the in- The trial proceedings then continued. dictment and accept appellant's plea in the presence of Because Lee did not object to the trial court's failure the jury" not preserved for appeal in absence of objec- to enter his plea before the jury, the State argues that Lee tion); Hardin v. State, 951 S.W.2d 208, 211 (Tex. has not preserved his complaint for appellate review. In App.--Houston [14th Dist.] 1997, no pet.). reliance on Turner v. State, Lee urges that "the reading of the indictment to which a plea is then entered is a cate- 3 At voir dire on punishment, the trial court gory-II [*876] right under Marin v. State" that must be denied Hervey's request that the indictment be expressly waived. See Turner, 897 S.W.2d 786, 787 (Tex. read to the jury panel. See Hervey v. State, 131 Crim. App. 1995); see also Marin, 851 S.W.2d 275, 279 S.W.3d 561, 565 (Tex. App.--Waco 2004, no pet.). (Tex. Crim. App. 1993). However, Turner is distinguish- [**6] On appeal, Hervey complained that the in- able because it: (1) addresses the failure to read en- dictment should have been read to the jury that hancement paragraphs and receive a plea at any point was seated and he should have been allowed to during the punishment phase; and (2) it predates the plead to the indictment. See id. Court of Criminal Appeals' decision in Cain v. State in At no time did Lee object to the trial court's failure which the Court held that "[e]xcept for [**4] certain to enter his plea before the jury or request that the in- federal constitutional errors labeled by the United States dictment be read, a plea entered, and the evidence rein- Supreme Court as 'structural,' no error, whether it relates troduced. See Hervey, 131 S.W.3d at 565; see also to jurisdiction, voluntariness of a plea, or any other Cantu, 939 S.W.2d at 646; Cox, 422 S.W.2d at 930; mandatory requirement, is categorically immune to a Robinson, 2002 Tex. App. LEXIS 615, at *2; Hardin, 951 harmless error analysis." 2 See Turner, 897 S.W.2d at S.W.2d at 211; Limon, 838 S.W.2d at 769. Any error 787; see also Cain, 947 S.W.2d 262, 264 (Tex. Crim. could have been corrected had Lee timely called it to the App. 1997). trial court's attention. See Hervey, 131 S.W.3d at 565 (citing Cantu, 939 S.W.2d at 646). Lee could have pre- 2 Because article 36.01 violations are not served error after trial by filing a motion for new trial, structural, "decisions since Turner suggest that bill of exception, or motion to arrest judgment, but did article 36.01 violations are subject to a harm not do so. See Martinez, 155 S.W.3d at 495 (citing War- analysis." Hernandez v. State, 190 S.W.3d 856, ren, 693 S.W.2d at 416). Accordingly, Lee [*877] has 868 (Tex. App.--Corpus Christi 2006,no pet.); see failed to preserve his complaint for appellate review; we Linton v. State, 15 S.W.3d 615, 620 (Tex. overrule his first issue. App.--Houston [14th. Dist.] 2000, pet. ref'd) ("Because the failure to read enhancements para- LEGAL SUFFICIENCY graphs and a defendant's plea to the jury is statu- tory error, the proper harm analysis is that for re- viewing non-constitutional error"). Page 4 239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **

Lee's second issue challenges the legal sufficiency 4 [HN4] A person commits aggravated assault of the evidence to support his aggravated assault convic- if he intentionally, knowingly, or recklessly tion. caused bodily injury to another and used or ex- hibited a deadly weapon during [**9] commis- Standard of Review sion of the assault. TEX. PEN. CODE ANN. § 22.02(a)(2) (Vernon Supp. 2006); TEX. PEN. [HN3] Under legal sufficiency review, we determine CODE ANN. § 22.01(a)(1) (Vernon Supp. 2006). whether, [**7] after viewing all the evidence in the light most favorable to the verdict, any rational trier of Identity fact could have found the essential elements of the of- fense beyond a reasonable doubt. Curry v. State, 30 The record contains conflicting evidence regarding S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson whether Lee was the shooter. Harrison testified that Lee's v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, girlfriend had been living with Harrison's sister-in-law. 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict When Lee came looking for his girlfriend and "causing of fact or assign credibility to the witnesses, as this was trouble," Harrison asked him to leave. A few days later, the function of the trier of fact. See Dewberry v. State, 4 Lee approached Harrison with a gun. A chase ensued S.W.3d 735, 740 (Tex. Crim. App. 1999); see also during which Lee fired several shots, one of which en- Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. tered Harrison's calf. Detective Paul Hacker and Officer 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. Matthew McCallister, while investigating an [*878] App. 1991). Inconsistencies in the evidence are resolved unrelated incident, observed a person chasing and shoot- in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, ing at Harrison. 819 S.W.2d at 843. Harrison later identified the shooter as "Choo-Choo," which led police to Lee. Harrison identi- Procedural Challenge fied Lee from a photographic lineup. Lee admitted that Lee contends that, presuming guilt was later joined his nickname is "Choo-Choo," but testified that other when the trial court entered a plea on Lee's behalf, the people also have this nickname. Lee denied ever meeting evidence was not reintroduced and the only other evi- or shooting Harrison. Lee, who resided in Arlington at dence before the jury is insufficient to establish aggra- the time, testified that he could not have shot Harrison vated assault. However, Lee did not request that the jury because he had no transportation to Waco where the disregard the previously admitted evidence, direct that shooting occurred. He also denied knowing the girl that the State be required to reintroduce the evidence, or ob- Harrison identified as [**10] Lee's girlfriend. However, ject to the [**8] trial court's failure to do so. See Limon, the State produced recorded conversations made by Lee 838 S.W.2d at 769. Any complaint regarding the failure from jail that instructed the listener to contact Lee's al- to reintroduce evidence is not preserved for appeal. See leged girlfriend. At trial, Harrison identified Lee as the Limon, 838 S.W.2d at 769; see also Castillo v. State, 530 shooter. Detective Hacker testified that Lee's height and S.W.2d 952, 954 (Tex. Crim. App. 1976). We have pre- physique matched that of the shooter. viously reached the same conclusion in an unpublished, As the sole judge of the weight and credibility of memorandum opinion. See Laningham v. State, No. witness testimony, the jury was entitled to disregard 10-06-00099-CR, 2007 Tex. App. LEXIS 5511, at *8-9 Lee's testimony and accept Harrison's. See Santellan v. (Tex. App.--Waco July 11, 2007, no pet.) (not designated State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); see for publication). Because this is a procedural issue unre- also Perez v. State, 113 S.W.3d 819, 838 (Tex. lated to sufficiency of the evidence, we will consider all App.--Austin 2003, pet. ref'd). The evidence is legally the admitted evidence when evaluating Lee's legal suffi- sufficient to show that Lee was the person who shot Har- ciency challenge. See Marshall v. State, 185 S.W.3d 899, rison. 902 (Tex. Crim. App. 2006); see also Limon, 838 S.W.2d at 769. Deadly Weapon Analysis [HN5] A firearm is a "deadly weapon." TEX. PEN CODE ANN. § 1.07(a)(17)(A) (Vernon Supp. 2006). The indictment alleges that Lee "intentionally, Although the gun was never recovered, Harrison testified knowingly, or recklessly caused bodily injury to DAVID that Lee shot him with a gun. Detective Hacker and Of- HARRISON by shooting DAVID HARRISON, and the ficer McCallister heard the gun shots and observed a gun Defendant did then and there use or exhibit a deadly in the hands of the person chasing Harrison. The evi- weapon, to-wit: a firearm, during the commission of said dence is legally sufficient to support a deadly weapon assault." 4 finding. Page 5 239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **

In summary, the evidence is legally sufficient to Bodily Injury sustain Lee's conviction for aggravated assault with a deadly weapon. Lee's second issue is overruled. [HN6] "Bodily Injury" means "physical pain, illness, or any impairment of physical condition." TEX. PEN. CONCLUSION CODE ANN. § 1.07(a)(8) (Vernon Supp. [**11] 2006). Having overruled both of Lee's issues, we affirm the Harrison, Hacker, and McCallister all testified that trial court's judgment. Harrison had been shot. The bullet entered the back of Harrison's calf and exited through the front of his calf. FELIPE REYNA Lee continued shooting even after striking Harrison, Justice forcing Harrison to continue running with an injured leg. Photographs were admitted into evidence that reflect the Before [**12] Chief Justice Gray, gunshot wound. The jury could reasonably infer that the Justice Vance, and wound caused Harrison to suffer physical pain from the injury. See Arzaga v. State, 86 S.W.3d 767, 778 (Tex. Justice Reyna App.--El Paso 2002, no pet.) ("the jury is permitted to draw reasonable inferences from the evidence, including (Chief Justice Gray concurs in the judgment but a an inference that the victim suffered pain as a result of separate opinion will not be issued) her injuries") (citing Goodin v. State, 750 S.W.2d 857, Affirmed 859 (Tex. App.--Corpus Christi 1988, pet. ref'd)). The evidence is legally sufficient to support a finding that Opinion delivered and filed October 24, 2007 Lee intentionally, knowingly, or recklessly caused bodily Publish injury to Harrison by shooting him. Page 1

URFAN S. MALIK, Appellant v. THE STATE OF TEXAS, Appellee

NO. 472-96

953 S.W.2d 234; 1997 Tex. Crim. App. LEXIS 60

September 10, 1997, Delivered

SUBSEQUENT HISTORY: [**1] Opinion on ciency review. The sufficiency of the evidence was Remand September 23, 1999, Reported at: 1999 Tex. properly measured by elements of the offense as defined App. LEXIs 7150. by the hypothetically correct jury charge, which would accurately set forth the law, be authorized by the indict- PRIOR HISTORY: Petition for Discretionary Re- ment, not unnecessarily increase the State's burden of view from the Fourteenth Court of Appeals. [HARRIS proof, and adequately describe the particular offense County]. charged.

DISPOSITION: Judgment vacated and cause re- OUTCOME: The court granted the State's petition for manded. discretionary review and vacated and remanded the deci- sion of the lower court. CASE SUMMARY: LexisNexis(R) Headnotes

PROCEDURAL POSTURE: After defendant's con- cealed weapon conviction was reversed by the Four- teenth Court of Appeals, Harris County (Texas), the Criminal Law & Procedure > Witnesses > Presentation State filed a petition for discretionary review. [HN1] If a witness was an accomplice to the crime on trial, then his testimony must be corroborated. Tex. Code OVERVIEW: After defendant's conviction for unlaw- Crim. P. art. 38.14. fully carrying a handgun was overturned, the State filed a petition for discretionary review. The State disagreed with the lower court's holding that legality of detention Criminal Law & Procedure > Jury Instructions > Par- was a proper part of a review of the sufficiency of the ticular Instructions > Reasonable Doubt evidence. Defendant contended that sufficiency of the Evidence > Procedural Considerations > Weight & evidence was measured by the jury charge and, even if Sufficiency erroneous, the State failed to object. The State contended [HN2] Generally, the sufficiency standard is limited to that it had, in fact, previously objected. The court vacat- situations in which the increased burden upon the State ed and remanded the lower court's decision. The jury appears in the application paragraph of the charge. But, instruction actually given concerning the legality of de- the court also utilizes that standard when an abstract por- fendant's detention should not have been used to measure tion of the charge functions as a kind of application par- the sufficiency of the evidence. The court directed the agraph. lower court to apply a new, correct standard for a suffi- Page 2 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

Hence, sufficiency of the evidence should be measured Governments > Courts > Judicial Precedents by the elements of the offense as defined by the hypo- [HN3] When a court's precedents appear to require it to thetically correct jury charge for the case. Such a charge stray far afield from the holding that originated a consti- would be one that accurately sets out the law, is author- tutional doctrine, the court should reexamine those prec- ized by the indictment, does not unnecessarily increase edents to determine their continuing validity. In con- the state's burden of proof or unnecessarily restrict the ducting such a reexamination, however, the court should state's theories of liability, and adequately describes the take into account the interests underlying the rule of stare particular offense for which the defendant was tried. This decisis. Often, it is better to be consistent than right. But, standard can uniformly be applied to all trials, whether to when a particular court-made rule does not produce con- the bench or to the jury, whether or not the indictment is sistency or the rule regularly produces results unantici- facially complete, and regardless of the specific wording pated by the constitutional doctrine on which it is based, of the jury charge actually given. then the court should be prepared to disavow the rule and overrule the line of cases embodying the rule. Criminal Law & Procedure > Witnesses > Presentation [HN7] Although the accomplice witness rule is also a Criminal Law & Procedure > Appeals > Standards of mere rule of evidence, it is statutorily worded as a suffi- Review > Substantial Evidence > General Overview ciency standard. Tex. Code Crim. P. art, 38.14. Insuffi- Evidence > Procedural Considerations > Weight & cient corroboration of accomplice witness testimony Sufficiency mandates a judgment of acquittal, assuming the witness [HN4] Legal insufficiency means that the State's case in question would be an accomplice as a matter of law was so lacking that it should not have ever been submit- under the hypothetically correct jury charge. ted to the jury. Insufficiency means that the State's case could be cured or satisfied only by the introduction of COUNSEL: Jules L. Laird, Jr., Houston. new evidence to prove, if possible, their theory of the case. Rikke Burke Graber, Assist. DA, Carol M. Cameron, Assist. DA, Houston.

Criminal Law & Procedure > Jury Instructions > Par- JUDGES: KELLER, J. MEYERS, J., concurs. Baird and ticular Instructions > Elements of the Offense Overstreet, J.J, join in the concur. Criminal Law & Procedure > Appeals > Standards of Review > General Overview OPINION BY: KELLER [HN5] Due process prevents an appellate court from af- firming a conviction based upon legal and factual OPINION grounds that were not submitted to the jury. However, due process is not necessarily violated by affirming a [*234] OPINION ON STATE'S PETITION FOR conviction in which the jury charge contains extra, un- DISCRETIONARY REVIEW necessary elements that are not supported by the evi- A jury found appellant guilty of unlawfully carrying dence. Appellate courts are not free to revise the basis on a weapon, namely, a handgun. The trial court assessed which a defendant is convicted simply because the same punishment at 90 days confinement in the Harris County result would likely obtain on retrial. Jail, probated for one year, and a $ 300 fine. The [*235] Fourteenth Court of Appeals reversed appellant's convic- tion with an order to the trial court to enter a judgment of Criminal Law & Procedure > Accusatory Instruments acquittal. Malik v. State, 1994 Tex. App. LEXIS 2751, > Indictments > Appellate Review No. C14-92-01293-CR (Tex. App.--Houston [14th Dist], Criminal Law & Procedure > Trials > Burdens of delivered November 10, 1994)(unpublished). The Court Proof > Prosecution of Appeals reasoned that the evidence was insufficient to Evidence > Procedural Considerations > Weight & support appellant's conviction because the evidence was Sufficiency insufficient to show reasonable suspicion to justify a [HN6] No longer shall sufficiency of the evidence be traffic stop of appellant. Id. The State petitioned for dis- measured by the jury charge actually given. Neverthe- cretionary review, and we vacated the Court [**2] of less, measuring sufficiency by the indictment is an inad- Appeals opinion. Malik v. State, No. 1369-94 (Tex. equate substitute because some important issues relating Crim. App., delivered March 29, 1995)(unpublished). to sufficiency, such as the law of parties and the law of We held that the legality of the detention, an admissibil- transferred intent, are not contained in the indictment. ity of evidence issue, was irrelevant to a sufficiency re- Page 3 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

view, and we remanded the case to the Court of Appeals when an abstract portion of the charge functions as a to conduct a "correct" sufficiency review. Id. On remand, kind of application paragraph. Arceneaux v. State, 803 the Court of Appeals held that the legality of the deten- S.W.2d 267, 271 (Tex. Crim. App. 1990) In Arceneaux, tion was a proper part of the sufficiency review because the jury charge contained an instruction requiring the a jury instruction concerning the issue was submitted. jury to find "beyond a reasonable doubt that the exhibit Malik v. State, No. C14-92-01293-CR (Tex. introduced in evidence by the State is cocaine" before the App.--Houston [14th Dist], delivered February 15, defendant could be convicted. Id. We held [**5] that, 1996)(unpublished). by failing to object to the cocaine instruction, the State assumed the (unnecessary) burden to offer a cocaine ex- The State has again petitioned for discretionary re- hibit into evidence. Id. Because no cocaine exhibit had view (which we granted), and it contends that: (1) in- been introduced into evidence (the cocaine had been de- cluding the detention issue in a sufficiency review is not stroyed through testing), we found the evidence to be appropriate because Jackson v. Virginia, 443 U.S. 307, insufficient to support the conviction and ordered a 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) applies only to judgment of acquittal. Id. at 271-272. the elements of the criminal offense, and (2) even if there were error, it is merely trial error because the instruction As in Arceneaux, the present charge involves the use was erroneous and the State objected to including the of an application-type charge in connection with the ad- detention issue in the jury charge. Appellant responds mission of certain [*236] evidence. The relevant por- that sufficiency of the evidence is measured by the jury tion of the instruction reads as follows: charge, [**3] citing Boozer v. State, 717 S.W.2d 608, If you fail to believe beyond a reasonable doubt that 610 (Tex. Crim. App. 1984), and he argues that the State the defendant, URFAN S. MALIK, was driving his vehi- failed to properly object to the erroneous jury instruction. cle in a suspicious manner as if some activity out of the We will reverse. ordinary had occurred or that activity related to a crime The present issue arises out of a line of cases begin- had occurred, then you are not to consider the pistol or ning with Benson v. State, 661 S.W.2d 708 (Tex. Crim. holster that was found in the defendant's car following App. 1982)(opinion on State's second motion for r'hrg), the stop by the deputy, and thereby find the defendant, cert. denied, 467 U.S. 1219, 81 L. Ed. 2d 372, 104 S. Ct. URFAN S. MALIK, not guilty. 2667(1984). In Benson, we held that the sufficiency of (Emphasis added). The present situation is in all the evidence is measured by the indictment as incorpo- relevant respects identical to Arceneaux. Although rated into the jury charge. Id. at 715. We decided that the Arceneaux involved evidence that was not admitted and State's failure to object to an unnecessary narrowing, in the [**6] present case involved evidence that arguably the jury charge, of the description of an element of the should not have been admitted, we do not find that to be offense meant that the State was bound to prove the ele- a significant distinction. Nor do we perceive a material ment as described, and a failure to do so would result in distinction between the Arceneaux instruction requiring an acquittal due to insufficient evidence. Id. 715-716. the admission of evidence before the jury can be permit- Subsequently, in Boozer, we held that, by failing to ob- ted to find guilt and the present instruction which re- ject to an erroneously submitted accomplice witness in- quires the jury to acquit if the evidence is illegally ob- struction, the State acquiesced in an increase in its bur- tained. In either case, the defendant's guilt turns, accord- den of proof, requiring corroboration of testimony that ing to instruction, upon the status of a particular piece of would not have needed corroboration absent the instruc- evidence. As we stated in Arceneaux, "the wording...of tion. 1 717 S.W.2d at 610-612. These cases [**4] have the charge may also authorize the trier of fact to reach or spawned a line of decisions in which the sufficiency of not reach the ultimate issue in the case." Id. at 271. (El- the evidence is measured by the jury charge if that lipsis and emphasis added). charge is more favorable to the defendant than the law requires and if the State fails to object. Arceneaux would appear to require an acquittal due to insufficient evidence as the Court of Appeals has done 1 [HN1] If a witness was an accomplice to the unless we find that the instruction was erroneous and that crime on trial, then his testimony must be cor- the State properly objected. But the State's contention roborated. See Texas Code of Criminal Proce- that Jackson, by its wording, applies only to elements of dure, Article 38.14. the offense is a cogent one. [HN3] When, as in the pre- sent case, our precedents appear to require us to stray far [HN2] Generally, this sufficiency standard has been afield from the holding that originated a constitutional limited to situations in which the increased burden upon doctrine, we [**7] should reexamine those precedents the State appears in the application paragraph of the to determine their continuing validity. In conducting charge. Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim. such a reexamination, however, we should take into ac- App. 1996). But, we have also utilized that standard Page 4 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

count the interests underlying the rule of stare decisis: original; other emphasis added). If an element to be Often, it is better to be consistent than right. But, when a proved is incorporated into the charge merely because particular court-made rule does not produce consistency the State failed to object, and hence, unnecessarily in- and/or the rule regularly produces results unanticipated creased its burden of proof, then that element cannot be by the constitutional doctrine on which it is based, then an "essential" element of the crime. The only answer to we should be prepared to disavow the rule and overrule this observation would be to claim that whether an ele- the line of cases embodying the rule. With these consid- ment is "essential" depends upon the wording of the par- erations in mind, we now reexamine the court-made rule ticular jury charge. But Jackson held that its standard is established in the Benson/Boozer line of cases. not concerned with the rationality of the verdict actually rendered. Id. at 319 n. 13. See also Benson, 661 S.W.2d For its holding, Benson relied upon federal constitu- at 717-718 (McCormick, J. dissenting). Moreover, Ben- tional precedent. 2 We at least implied that our view son's reliance upon Forman and Burks for the proposition about measuring sufficiency by the jury charge was in- that insufficient evidence means the case should never herent in the Jackson standard. Benson, 661 S.W.2d at have been submitted to the jury underscores the inappro- 714-715. We later expressly held that the Benson/Boozer priateness of using the jury charge as a measurement rule was based upon Jackson: [**10] of sufficiency. If the case should never have been submitted to the jury, that means there should not 2 Boozer implied that the Benson/Boozer rule have been a jury charge in the case. If the question is has a statutory basis by referencing a number of whether a jury charge should even exist, how can the different statutes in a footnote before its citation jury charge be the measurement of evidentiary suffi- to Benson. Boozer, 717 S.W.2d at 611 n. 5. Af- ciency? See Boozer, 717 S.W.2d at 618-619 (Onion, P.J. ter reviewing those statutes, however, we find dissenting)(impropriety of using charge to determine that none of them requires the rule formulated in entitlement to instructed verdict where motion for in- Benson and Boozer. structed verdict made before charge was given). Benson's [**8] further contention that insufficiency means the State's case could be cured or satisfied only by the introduction The Jackson standard is the foundation for all this Court's of new evidence also undercuts the validity of the rule later machinations concerning exactly what "standard" announced in that case. If the charge unnecessarily in- should be used to define error in a jury charge. The first creased the State's burden of proof, then the State's case such example was Benson, supra, in which the defendant could be cured by merely altering the charge to eliminate attacked the sufficiency of the evidence to sustain his the unnecessary burden. Benson, 661 S.W.2d at 719 conviction for retaliation. (McCormick, J. dissenting); Boozer, 717 S.W.2d at 613 (McCormick, J. dissenting). Arceneaux, 803 S.W.2d at 269-270. In Benson, we also Further, the Supreme Court case of Forman, cited by relied upon Forman v. United States, 361 U.S. 416, 4 L. Benson in support of its holding, is completely incon- Ed. 2d 412, 80 S. Ct. 481 (1980) and Burks v. United sistent with the Benson/Boozer rule. In Forman, the jury States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978) charge erroneously required the jury to find [**11] a for the proposition "that [HN4] legal insufficiency means "subsidiary conspiracy" before convicting the defendant, that the government's case was so lacking that it should and the government failed to object. 361 U.S. at 422 & not have ever been submitted to the jury." Benson, 661 424. See also, Stephens v. State, 806 S.W.2d 812, 821 S.W.2d at 715-716 (internal quotation marks omitted; (Tex. Crim. App. 1990)(McCormick, P.J. dissenting), emphasis in Benson). We further explained that "insuffi- cert. denied, 502 U.S. 929, 116 L. Ed. 2d 289, 112 S. Ct. ciency means that the State's case could be cured or sat- 350 (1991). No subsidiary conspiracy was ever proven. isfied only by the introduction of new evidence to prove, Forman, 361 U.S. at 424. See also Stephens, 806 S.W.2d if possible, their theory of the case." Id. at 716 (emphasis at 821. Nevertheless, the Supreme Court held that a added). judgment of acquittal was inappropriate, noting that: A review of the relevant precedents shows that the "Here there was no lack of evidence in the record....The federal constitutional cases relied upon in Benson and jury was simply not properly instructed." Forman, 361 other cases as the foundation for the Benson/Boozer U.S. at 426 (ellipsis inserted and internal quotation [**9] rule do not in fact support that rule. Under Jack- marks omitted). See also Stephens, 806 S.W.2d at 821. son, the sufficiency review question is "whether, after Forman viewed the more burdensome charge as mere viewing the evidence in the light most favorable [*237] trial error rather than a sufficiency of the evidence prob- to the prosecution, any rational trier of fact could have lem. In a concurring opinion, Justice Whittaker went found the essential elements of the crime beyond a rea- even further, opining that the trial error was harmless: sonable doubt." 443 U.S. at 319 (emphasis on "any" in Page 5 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

There being neither charge in the indictment nor evi- United States, 500 U.S. 257, 269-270 & 270 n. 8, dence in the record of "subsidiary conspiracy," the re- 114 L. Ed. 2d 307, 111 S. Ct. 1807 (1991); Dunn quested and obtained charge to the jury amounted to a v. United States, 442 U.S. 100, 60 L. Ed. 2d 743, virtual direction to acquit. And if the jury, in obedience 99 S. Ct. 2190 (1979); Cole v. Arkansas, 333 U.S. to that [**12] charge, had acquitted, its verdict would, 196, 201-202, 92 L. Ed. 644, 68 S. Ct. 514 of course, have ended the case. Therefore, petitioner, by (1948). Perhaps recognizing this principle, the requesting and inducing the court to give this erroneous Fifth Circuit implied that the complete absence of charge, got much more than he was entitled to under the a parties instruction from the jury charge may law. Yet, he claimed in the Court of Appeals that this present constitutional problems. Brown, 937 very charge, because unsupported by evidence, was er- F.2d at 182. However, we do not believe that due roneous and required an outright reversal....I realize there process is necessarily violated by affirming a is no profit in decrying a spent transaction, but I cannot conviction in which the jury charge contains ex- resist observing the obvious, namely, that in these cir- tra, unnecessary elements that are not supported cumstances, the law required affirmance of the judg- by the evidence. Moreover, the Supreme Court ment....Petitioner, instead of complaining that he was has indicated that the McCormick/Dunn/Cole rule given only a new trial, should be thankful that his con- does not bar retrial of a criminal defendant. viction was not affirmed. Dunn, 442 U.S. at 107 ("appellate courts are not free to revise the basis on which a defendant is 361 U.S. at 429-430 (Whittaker, J. concurring)(ellipses convicted simply because the same result would inserted). likely obtain on retrial"). Moreover, subsequent developments in federal case [**15] The Benson/Boozer rule has been charac- law regarding the Jackson standard have failed to lend terized as "among the most controversial of the last dec- any support to the reasoning of the Benson/Boozer line ade." Mireles v. State, 901 S.W.2d 458, 466 (Tex. Crim. of cases; in fact, the opposite has occurred. The Supreme App. 1995)(Meyers, J. dissenting). The rule has been Court has never imposed on any jurisdiction a require- strongly criticized for being inconsistently applied. ment to measure the sufficiency [*238] of the evi- Jones v. State, 815 S.W.2d 667, 674 (Tex. Crim. App. dence by the jury charge. Stephens, 806 S.W.2d at 820 1991)(McCormick, P.J. dissenting); Morrow v. State, (McCormick, P.J. dissenting). Our research of the federal 753 S.W.2d 372, 382 (Tex. Crim. App. 1988)(Onion, P.J. [**13] case law has failed to uncover any such re- dissenting). Presiding Judge McCormick criticized the quirement imposed by any of the federal circuits. In fact, Court for being inconsistent on whether sufficiency of the Fifth Circuit has held that the Benson/Boozer doc- the evidence should be measured solely by the applica- trine is not a rule of federal constitutional law. Brown v. tion paragraph or by the charge as a whole. Jones, 815 Collins, 937 F.2d 175, 182 (5th Cir.), rehearing en banc S.W.2d at 674. His criticism was on target, as this Court denied, 945 F.2d 403 (1991). Instead, it is "a state pro- has vacillated between the two positions. In Garrett v. cedural nuance foreign to federal constitutional norms." State, we held that evidentiary sufficiency should be Id. at 181. In Brown, the jury charge contained general measured by the entire charge rather than solely by the instructions on the law of parties, and the evidence was application paragraphs. 749 S.W.2d 784, 802-803 (Tex. sufficient to convict the defendant as an accomplice. Id. Crim. App. 1986)(opinion on State's Motion for Rehear- at 182. But, the application paragraph of the charge re- ing). At least one court of appeals relied upon that hold- quired the jury to convict the defendant as the primary ing, only to be reversed by this Court. Jones v. State, actor, and the evidence was insufficient to support that 774 S.W.2d 7, 11-12 (Tex. App.--Dallas 1989), reversed, theory. Id. Nevertheless, this variation between the evi- 815 S.W.2d 667 (Tex. Crim. [**16] App. 1991); Big- dence and the charge did not rise to constitutional pro- gins v. State, 824 S.W.2d 179, 180 (Tex. Crim. App. portions. Id. The Fifth Circuit held that, under Jackson, 1992). To complicate matters further, we have held that "we look merely to the substantive elements of the crim- abstract portions of the charge that act like an application inal offense as defined by state law, [citation omitted], paragraph must be used in measuring evidentiary suffi- not...to a state's procedural requirements." Id. at 181 ciency. Arceneaux, 803 S.W.2d at 271 (critical question (emphasis in original; ellipsis inserted; bracketed materi- is whether a paragraph "authorizes a conviction"). al replacing internal citation; [**14] internal quotation Consequently, the rule that evidentiary sufficiency is marks omitted). 3 measured by the application paragraph of the charge has been difficult to apply. We have reversed court of ap- 3 We recognize that [HN5] due process pre- peals decisions for failing to determine accurately what vents an appellate court from affirming a convic- paragraphs of the charge are application paragraphs or tion based upon legal and factual grounds that "authorize a conviction." Jackson v. State, 898 S.W.2d were not submitted to the jury. McCormick v. Page 6 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

896, 899-900 (Tex. Crim. App. 1995); Arceneaux, 803 practice this Court has fashioned a maze of complex S.W.2d at 271-272. The futility of these exercises be- rules for different situations. comes even more apparent in light of our recent observa- tion that "it may well be that application paragraphs are 4 That is, it alleges all of the essential elements an anachronism, and that jurors could perform just as of a criminal offense. well without them." Plata, 926 S.W.2d at 304. In addition to producing uncertainty and incon- Former Presiding Judge Onion complained that the sistency, the Benson/Boozer rule is inherently at odds Benson/Boozer rule produced different [*239] meas- with the purpose of the Jackson sufficiency standard. The urements for evidentiary sufficiency depending upon Jackson standard was established to ensure that innocent whether the State or [**17] the defendant benefitted persons would not be convicted. Jackson, 443 U.S. at from the instructions given. If the jury charge requires 323 ("The question whether a defendant has been con- more than the law requires, and the State fails to object, victed upon inadequate evidence is central to the basic then the State acquiesces in an increase in its burden of question of guilt or innocence"). The Benson/Boozer rule proof, and sufficiency of the evidence is measured by the permits, and in fact contemplates, that persons who are charge. Morrow, 753 S.W.2d at 381 n. 5 (Onion, P.J. guilty of the crime charged and convicted by a jury may dissenting). But, if the jury charge requires less than the nevertheless be acquitted on appeal because the State law requires, and the defendant fails to object, the de- failed to object to an erroneous and/or unnecessary in- fendant is not treated as having acquiesced in a lesser struction favorable to the defendant. [**20] In es- burden of proof, and sufficiency of the evidence is sence, the rule permits the greatest form of relief in the measured by the elements of the offense rather than the criminal system -- an acquittal -- to be granted because charge. Id. Presiding Judge Onion concluded that "there the defendant received a windfall in the jury instructions. appear[] to be different standards applied depending up- The Benson/Boozer rule is based upon a misinter- on whose ox is gored." Id. The inconsistency with re- pretation of federal constitutional precedent, results in spect to measuring sufficiency is especially apparent complex and inconsistent standards for reviewing suffi- when comparing different scenarios involving a variance ciency of the evidence, and is fundamentally at odds with between the indictment and the jury charge. If the in- the purpose behind the Jackson standard of sufficiency dictment is facially complete, 4 and the jury charge un- review. Therefore, we overrule the Benson/Boozer line necessarily narrows the permissible bases for a convic- of cases and abolish the standard of sufficiency review tion or requires more proof than the indictment, then the that they formulated. [HN6] No longer shall sufficiency Benson/Boozer rule requires measuring the sufficiency of the evidence be measured by the jury charge actually of the evidence by the jury charge. Fisher [**18] v. given. Nevertheless, we recognize that measuring suffi- State, 887 S.W.2d 49, 55 (Tex. Crim. App. 1994). But, if ciency by the indictment is an inadequate substitute be- the indictment is facially complete, and the jury charge cause some important issues relating to sufficiency -- e.g. impermissibly broadens the permissible bases for con- the law of parties and the law of transferred intent -- are viction, sufficiency is measured by the indictment rather not contained in the indictment. Boozer, 717 S.W.2d at than the charge (or perhaps more precisely, by the jury 610 n. 4; [*240] Jones, 815 S.W.2d at 675 (McCor- charge without the impermissible broadening language). mick, P.J. dissenting). Hence, sufficiency of the evidence Id. at 57. Further, if the indictment is facially incomplete, should be measured by the elements of the offense as then sufficiency of the evidence is measured by the jury defined by the hypothetically correct jury charge for the charge so long as the charge remains consistent with the case. Such a charge would be one that accurately sets out indictment and the controlling penal provision. Id. at the law, is authorized by the [**21] indictment, does 57-58. And of course, sufficiency of the evidence can not unnecessarily increase the State's burden of proof or never be measured by the jury charge in a bench trial unnecessarily restrict the State's theories of liability, and because there is no jury charge. Stephens, 806 S.W.2d at adequately describes the particular offense for which the 821 & 821 n. 4 (McCormick, P.J. dissenting). Instead of defendant was tried. 5 This standard can uniformly be producing one simple, coherent standard to measure the applied to all trials, whether to the bench or to the jury, sufficiency of the evidence, the Benson/Boozer rule has whether or not the indictment is facially complete, and spawned several standards, depending on the complete- regardless of the specific wording of the jury charge ac- ness of the indictment, whether the jury charge requires tually given. Moreover, the standard we formulate today more or less proof from the State than the indictment, ensures that a judgment of acquittal is reserved for those and whether the trial was to the bench or to the jury. situations in which there is an actual failure in the State's While these disparate standards may in theory be justi- proof of the crime rather than a mere error in the jury fied [**19] under the single, unified theory of measur- charge submitted. ing sufficiency by "the indictment as properly incorpo- rated into the jury charge," Fisher, 887 S.W.2d at 57, in Page 7 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

5 This list is not necessarily exhaustive. On appeal, appellant claimed the evidence was insuffi- cient to support the jury's finding that appellant had been Turning to the present case, we find that the jury in- driving in a suspicious manner. The Court of Appeals struction concerning the legality of appellant's detention noted that the legality of a detention is normally "irrele- should not have been used to measure the sufficiency of vant" for purposes of a sufficiency review, but decided to the evidence. The legality of appellant's detention is not "assume" the charge was [**24] correct and review the an element of the offense charged but merely relates to sufficiency of the evidence to support it. Upon reviewing the admissibility of evidence. [**22] Moreover, a hy- the evidence, the Court of Appeals determined it was pothetically correct jury charge would not have made the insufficient to support "the jury's determination that ap- admissibility of a particular piece of evidence a precon- pellant was driving his vehicle in a suspicious manner," dition for conviction. 6 reversed the judgment of the trial court, and ordered a judgment of acquittal. Malik v. State, 1996 Tex. App. 6 [HN7] Although the accomplice witness rule LEXIS 607, *10, No. 14-92-01293-CR (Tex. is also a mere rule of evidence, and is not re- App.--Houston [14th Dist.] Feb. 15, 1996)(opinion on quired under Jackson, see Brown, 937 F.2d at remand)(unpublished). 182 n. 12, it is statutorily worded as a sufficiency standard. See Texas Code of Criminal Procedure, We granted the State's petition on the following Article 38.14. Nothing in this opinion changes the ground for review: rule that insufficient corroboration of accomplice The Court of Appeals erred in failing to properly witness testimony mandates a judgment of ac- apply the correct standard of review in analyzing the quittal -- assuming the witness in question would sufficiency of the evidence and in reversing and re- be an accomplice as a matter of law under the manding for an order of acquittal.The State argues the hypothetically correct jury charge. Court of Appeals erred in its sufficiency analysis in two We vacate the opinion of the Court of Appeals and respects: (1) Jackson v. Virginia does not apply here remand this cause to that Court to apply the correct since the legality of the detention is not one of the "ele- standard of review in analyzing appellant's points of er- ments of the offense"; and (2) since the State objected to ror regarding the sufficiency of the evidence. the charge, the [*241] issue should be treated as trial error rather than a sufficiency problem, citing Ortega v. KELLER, J. State, 668 S.W.2d 701 (Tex. Crim. App. 1983)(opinion on Judgment of Court of Appeals vacated; Cause re- original submission) [**25] and Stephens v. State, 717 manded to Court of Appeals S.W.2d 338, 341 (Tex. Crim. App. 1986). DELIVERED: September 10, 1997 The State is correct on its second argument. 1 In Or- tega, we explained that when the trial court unnecessarily CONCUR BY: MEYERS increases the State's burden in the jury instructions and the State objects to the increase, the matter should be CONCUR viewed as trial error on appeal:

[**23] CONCURRING OPINION 1 Addressing the second argument would re- solve the case and I therefore decline to comment The majority expressly "overrules the Ben- on the State's first argument. son/Boozer line of cases," and describes that line of deci- sions as holding that "the sufficiency of the evidence is But once the [additional burden] is incorporated into measured by the jury charge if that charge is more fa- the court's instructions to the jury in such a way that the vorable to the defendant than the law requires and if the jury must find it before a verdict of guilt is authorized, State fails to object." Majority opinion at 2. But in this Article 36.13, V.A.C.C.P., it must be proved, or the ver- case the State objected. Therefore the majority's holding dict will be deemed "contrary to the law and evidence." is dicta and I decline to join it. I concur in the judgment See Article 40.03(9), V.A.C.C.P. In sum, there is no such of the Court, however, because application of the con- thing as "surplusage" in the part of the court's instruc- trolling caselaw calls for a reversal of the judgment of tions to the jury which authorizes a conviction, and if the the Court of Appeals. prosecutor believes that portion of the charge unneces- sarily increases his burden of proof, it behooves [**26] The trial court erroneously included in the jury him specially to request a charge which correctly allo- charge an instruction on the legality of appellant's deten- cates the burden placed on him by law. This is nothing tion (whether or not appellant had been driving his vehi- more than the course of law which is due before a person cle in a suspicious manner, thereby justifying a stop). may be deprived of liberty. Article 1.04, V.A.C.C.P. The State objected at trial to the inclusion of the charge. Page 8 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

And if the record reflects the prosecutor has pursued this jury shall disregard any such evidence so ob- course to protect his lawful obligations, but the trial court tained. has nevertheless refused the amendment to the indict- We have interpreted this provision as only ment or submission of the requested charge, and the evi- requiring a charge thereunder "if there is a factual dence is found insufficient to support the verdict because dispute as to how the evidence was obtained." of the trial court's errors in this regard, those reviewable Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. rulings of the trial court found erroneous by the appellate App. 1986). In other words, a defendant is not en- court constitute "trial error," and the State is free to pur- titled to a charge if the defendant does not con- sue another prosecution. Cf. Burks v. United States, 437 trovert or challenge the State's facts, as opposed U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); and Greene to the legal conclusions to be drawn from the v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 facts. Id. (1978). The State is exactly right. The instruction should Ortega, 668 S.W.2d at 705 n.10. We further explained in not have been given because there was no dispute about Stephens that when the charge imposes a greater burden the [**29] facts leading to the stop. By objecting to on the State than placed upon it by the controlling stat- charge, the State did not assume the greater burden. See ute, and the State does not object to the increased burden, Ortega, supra; Stephens, supra. The Court of Appeals it can be assumed that the State voluntarily shouldered erred in reversing and ordering a [*242] judgment of that burden. But if the State objects [**27] to the great- acquittal based upon insufficiency of the evidence as to er burden, then the increased burden is not assumed by the legality of the detention. This case should be reversed the State so as to bar it from retrying the case if the evi- due to trial error, and the State afforded the opportunity dence is insufficient under the increased burden in the to reprosecute. 4 Ortega, 668 S.W.2d at 705 n.10 (if State charge. 2 Stephens, 717 S.W.2d at 341. objects to increased burden in charge and evidence is found insufficient to support the verdict because of trial 2 Judge Clinton best explained this notion in court's error in this regard, "those reviewable rulings of concurring in the denial of the State's motion for the trial court found erroneous by the appellate court rehearing in Boozer: constitute 'trial error,' and the State is free to pursue an- other prosecution"). . . . in the event the State had objected to the trial court's unnecessarily increasing its burden of 4 This rule is consistent with the Court's hold- proof, we would be in a position to point to the ings as to reprosecution of a lesser included of- accomplice witness charge and say, "that charge fense upon a finding on appeal of insufficiency of was erroneous just as the prosecutor argued," the evidence on the aggravating element of the then hold that error was the direct cause of the greater offense. In Granger v. State, 850 S.W.2d reversal of the conviction and as such was "trial" 513 (Tex. Crim. App. 1993), the defendant was charge error. convicted of capital murder, but on direct appeal, Boozer, 717 S.W.2d at 614 (Clinton, J., we found the evidence insufficient as to the capi- concurring in denial of State's motion for leave to tal element. The defendant claimed his subse- file motion for rehearing). quent prosecution for murder was barred by dou- ble jeopardy. We disagreed. We explained that The State argues that an article 38.23 instruction is allowing the State to reprosecute placed the de- required only if there is a factual dispute about how the fendant in the position he would have been in evidence was obtained and there was no factual dispute absent the trial court's error in submitting the cap- in this case. [**28] 3 The State objected to inclusion of ital charge. Because the evidence was only insuf- the instruction. ficient as to the capital element, if the lesser in- cluded offense alone had gone to the jury, the 3 Article 38.23(a) provides that no evidence defendant would have been convicted. We em- obtained in violation of the Constitutions or laws phasized, however, that had no charge been in- shall be admitted against the accused. Further, cluded on the lesser offense, the defendant could In any case where the legal evidence raises not have been retried for that offense: an issue hereunder, the jury shall be instructed . . . We were careful to point out repeatedly that if it believes, or has a reasonable doubt, that in our opinion [in another case where a jury in- the evidence was obtained in violation of the pro- struction was not given on the lesser included of- visions of this Article, then and in such event, the fense at the first trial] that at the original trial, the State had chosen not to request an instruction on Page 9 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **

the lesser included offense of rape. In other son/Boozer doctrine which applies in this case. The State words, the State had, at the first trial, failed to does not cite to Benson and Boozer, much less present an pursue the lesser included offense charge after argument for overruling those opinions. It has always jeopardy attached to it and was, therefore, forev- been my understanding that this Court should not strain er barred from prosecuting it again. to overrule precedent when not called for on the facts at hand, but should wait for the appropriate case where the As the court correctly explained in [another parties raise and have the opportunity to argue the issue, case] when faced with essentially the same facts: and where the precedent to be overruled would be other- . . . the jury ... was not instructed on [the wise be applicable and control the disposition of the case lesser offense]. It appears that the state simply at hand. See Blanco v. State, No. 098-97 (State's pet. chose not to pursue a conviction for that offense, granted April 30, 1997)(State urges Court to re-examine although the [defendant] was in jeopardy as to Benson/Boozer). As a believer in the adversarial system, that offense. Had it so elected, the state could I would wait for the appropriate case where the Court have requested the additional instruction [on the could entertain the best arguments on the issue from both lesser offense]. Therefore, with respect to the sides of the table before rendering a decision. [lesser] offense ..., the trial was abandoned or I concur in the judgment of the Court. aborted by the state without manifest necessity. MEYERS, J. Id. at 520(emphasis in original). Delivered September 10, 1997 [**30] The majority does not mention the Court's opinions in Ortega and Stephens, even though those cas- Baird and Overstreet, J.J, join. es provide an exception to application of the Ben- Page 1

James Norris WELCH, Appellant v. The STATE of Texas, Appellee

No. 04-97-00973-CR

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

993 S.W.2d 690; 1999 Tex. App. LEXIS 998

February 17, 1999, Delivered February 17, 1999, Filed

SUBSEQUENT HISTORY: [**1] Motion for to the evidence when it was offered, he waived his right Rehearing Denied April 14, 1999. to complain about the admissibility of the DNA evidence on appeal. The court also held that the lower court did PRIOR HISTORY: From the 226th Judicial District not abuse its discretion when it declined to change venue Court, Bexar County, Texas. Trial Court No. because prisoner failed to demonstrate that an impartial 97-CR-4415. Honorable Sid L. Harle, Judge Presiding. jury could not have been selected with even a careful voir dire. Convictions were affirmed. DISPOSITION: AFFIRMED. OUTCOME: Appellant prisoner's convictions for ag- CASE SUMMARY: gravated sexual assault and aggravated robbery were confirmed. The court held that there was sufficient legal evidence to support the convictions and prisoner waived PROCEDURAL POSTURE: Appellant prisoner chal- his right to review regarding the admissibility of the lenged his convictions for aggravated sexual assault and DNA evidence because he failed to object to its admis- aggravated robbery from the 226th Judicial District sion at trial. Court, Bexar County (Texas). LexisNexis(R) Headnotes OVERVIEW: Appellant prisoner contended that it was error for him to have been convicted of aggravated sexu- al assault and aggravated robbery. Prisoner argued that the prosecution failed to produce evidence he was the Criminal Law & Procedure > Appeals > Standards of assailant. The court stated that prisoner, in effect, argued Review > General Overview that in-court identification by the victim was incredible Evidence > Procedural Considerations > Weight & because the victim was unable to identify him before Sufficiency taking the stand. The court held that credibility issues [HN1] Reviewing the legal sufficiency of the evidence, were for the jury, to decide and therefore prisoner's com- the appellate court views all of the evidence in the light plaint was without merit. Prisoner also contended that the most favorable to the prosecution and inquire whether DNA evidence was improperly admitted. The court not- any rational trier of fact could have found the essential ed that prisoner's counsel stated there was no objection elements of the crime beyond a reasonable doubt. This when the written report that confirmed prisoner's DNA standard applies to direct and circumstantial evidence matched the DNA sampled from the rape kit was offered. alike. The court stated that because prisoner had no objection Page 2 993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **

Evidence > Procedural Considerations > Circumstan- Civil Procedure > Venue > General Overview tial & Direct Evidence Civil Procedure > Trials > Jury Trials > Jurors > Se- [HN2] Identity may be established either through direct lection > Voir Dire or circumstantial evidence. Criminal Law & Procedure > Juries & Jurors > Chal- lenges to Jury Venire > Pretrial Publicity > Venue Considerations Criminal Law & Procedure > Appeals > Standards of [HN8] A change of venue is required only where pretrial Review > General Overview publicity is so pervasive and prejudicial as to create a [HN3] While reviewing the evidence, the appellate court reasonable probability that an impartial jury cannot be is mindful that the jury alone judges the weight and empanelled even with the most careful voir dire. credibility of the evidence. The jury also maintains the power to draw reasonable inferences from basic facts to ultimate facts. Criminal Law & Procedure > Jury Instructions > Par- ticular Instructions > Lesser Included Offenses [HN9] A defendant is entitled to a jury charge on a lesser Criminal Law & Procedure > Juries & Jurors > Prov- included offense if (1) the lesser included offense is ince of Court & Jury > General Overview subsumed in the proof necessary to establish the offense [HN4] Credibility issues are for the jury, not the appel- charged, and (2) some evidence in the record would late court, to decide. permit a jury rationally to find that the defendant, if guilty, is guilty only of the lesser offense.

Evidence > Procedural Considerations > Exclusion & Preservation by Prosecutor Criminal Law & Procedure > Jury Instructions > Par- Evidence > Procedural Considerations > Objections & ticular Instructions > Lesser Included Offenses Offers of Proof > Objections [HN10] If a defendant presents no evidence, and no evi- Evidence > Procedural Considerations > Rulings on dence otherwise raises the issue of a lesser offense, a Evidence charge is not required. [HN5] When a defendant challenges the admissibility of certain evidence in a hearing outside the presence of the jury, he need not renew his objection when the evidence Criminal Law & Procedure > Appeals > Standards of is offered at trial in order to preserve his complaint for Review > General Overview review. Tex. R. Evid. 103(a)(1). [HN11] In reviewing a court's decision not to give a charge on a lesser offense, the appellate court examines all of the evidence presented at trial regardless of wheth- Criminal Law & Procedure > Appeals > Reviewability er it is credible, controverted, or conflicting. However, > Waiver > General Overview the evidence may not be plucked out of the record and Evidence > Procedural Considerations > Exclusion & examined in a vacuum. Preservation by Prosecutor Evidence > Scientific Evidence > DNA [HN6] If at trial the defendant states he has no objection Criminal Law & Procedure > Appeals > Standards of when the evidence is offered, he waives his admissibility Review > Abuse of Discretion > Evidence complaint. [HN12] The appellate court reviews the trial court's deci- sion to admit extraneous offense evidence with the abuse of discretion standard. Civil Procedure > Venue > General Overview Criminal Law & Procedure > Juries & Jurors > Chal- lenges to Jury Venire > Pretrial Publicity > Prejudice Criminal Law & Procedure > Sentencing > Imposition Criminal Law & Procedure > Appeals > Standards of > Evidence Review > Abuse of Discretion > Venue [HN13] Extraneous offense evidence may be offered [HN7] The appellate court reviews the trial court's venue during the sentencing phase to assist the jury in deter- determination for an abuse of discretion. Thus, the ap- mining punishment and is admissible as to any matter the pellate court may not reverse the ruling unless it is un- court deems relevant to sentencing, including but not reasonable in light of the record evidence. limited to evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have Page 3 993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **

been committed by the defendant. Tex. Code Crim. P. [*693] After the man left, Alice ran to Evelyn's Ann. art. 37.07, § 3 (Supp. 1998). room and ordered her to call for help. While Alice waited in Evelyn's room, Evelyn woke her father and called the police. Officer Mendoza arrived at the Lopez home to Evidence > Procedural Considerations > General find Alice shaken and crying. He observed a pair of Overview women's underwear near the front door and a wet spot on [HN14] The appellate court bears in mind that while the Evelyn's bed, which he thought might contain semen. trial court maintains authority to decide threshold issues After recording Alice's description of her attacker, Of- of admissibility, the jury holds the power to decide ficer Mendoza escorted the Lopezes to University Hos- whether the State has met its burden of proof. pital. Nurse practitioner Nancy Sugarek examined Alice. COUNSEL: ATTORNEYS FOR APPELLANT: Kim- Sugarek observed small ruptured blood vessels on Alice's berly E. Young, San Antonio, TX. back where her bra contacted her skin. Sugarek also noted redness in the vaginal area. These observations, ATTORNEYS FOR APPELLEE: Daniel Thornberry, combined with Alice's apparent emotional state and ac- Assistant Criminal District Attorney, San Antonio, TX. count of the [**3] trauma, led Sugarek to conclude Al- ice had been sexually assaulted. Sugarek also collected JUDGES: Opinion by: Paul W. Green, Justice. Sitting: hair and fluid samples for the rape kit. Catherine Stone, Justice, Paul W. Green, Justice, Karen Angelini, Justice. In the months following this incident, other sexual assaults were reported in Alice's neighborhood. The po- OPINION BY: PAUL W. GREEN lice and media referred to the perpetrator of these crimes as the "Southeast Side Rapist." Ultimately, Welch was OPINION identified as Alice's attacker through tests comparing DNA from the rape kit's vaginal swab to that found in [*692] A jury convicted James Welch of aggra- Welch's blood. 1 In fact, the test results, combined with vated sexual assault and aggravated robbery and sen- those arising from other attacks in southeast Bexar tenced him to life imprisonment plus a $ 10,000 fine. On County, led authorities to suspect Welch was the serial appeal, Welch complains about legal insufficiency, the rapist. admission of DNA evidence, the denial of a change of venue, the absence of a jury instruction on a lesser in- 1 Welch's blood was drawn during the investi- cluded offense, and the admission of evidence of extra- gation of another sexual assault. neous offenses during the punishment phase. We affirm. During trial, the State produced additional evidence BACKGROUND to prove Welch robbed the Lopez home. During a search of Welch's mother's dining room, where Welch had been On December 17, 1996 around 10:00 p.m., Alice storing some of his belongings, police recovered a box Lopez fell asleep on the sofa in the sitting area outside cutter, Evelyn's black wallet and eyeliner, and several her second-story bedroom. At approximately 1:00 a.m., items of dark clothing. Furthermore, officers [**4] on she woke to find a stranger sifting through her belong- pawn shop detail testified they located Alice's jewelry at ings. When she asked him who he was, he motioned for various pawnshops on the southeast side of town. Pawn her to be quiet and to go over to him. Alice saw a sharp slips indicated Welch pawned these items within days of object in his hand, which she believed was a box cutter. the attack at the Lopez home-- December 18, 1996 and The stranger warned Alice not to speak or he would "cut December 20, 1996. her up." When Alice approached [**2] him, he dragged her LEGAL SUFFICIENCY downstairs to the living room where he forced her to In his second point of error, Welch argues the evi- have sexual intercourse. While assaulting Alice, he or- dence of his guilt is legally insufficient to sustain his dered her to remove her rings and bracelets. After as- conviction. He claims the trial court should have granted saulting Alice, he ordered her not to move until he was his motion for directed verdict because the State failed to gone or he would kill her. He left with Alice's jewelry, as produce evidence he was the assailant. In particular, well as a black leather jacket belonging to Alice's Welch contends neither Alice's in-court identification, daughter Evelyn. The jacket contained Evelyn's wallet, the stolen property, nor the DNA evidence proves he keys, and an eyeliner pencil. committed the sexual assault and robbery. The State, on the other hand, argues "the cumulative evidence of ap- Page 4 993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **

pellant's identity is overwhelming." We agree with the [**7] 1991). Accordingly, the DNA results were some State. evidence he committed the sexual assault. In [HN1] reviewing the legal sufficiency of the evi- In conclusion, all of this evidence supports the jury's dence, we view all of the evidence in the light most fa- verdict. See Villalon v. State, 791 S.W.2d 130, 132 (Tex. vorable to the prosecution and inquire whether any ra- Crim. App. 1990) (holding that evidence may not be iso- tional trier of fact could have found the essential ele- lated for scrutiny but that all evidence must be consid- ments of the crime beyond a reasonable doubt. Jackson ered). We therefore overrule Welch's second point of v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. error. Ct. 2781 (1979); King v. State, 895 S.W.2d [**5] 701, 703 (Tex. Crim. App. 1995). This standard applies to ADMISSION OF DNA EVIDENCE direct and circumstantial evidence alike. King, 895 S.W.2d at 703; McGoldrick v. State, 682 S.W.2d 573, 577 In his first point of error, Welch argues the trial (Tex. Crim. App. 1985). Furthermore, [HN2] identity court erred in admitting DNA test results that were sci- may be established either through direct or circumstantial entifically unreliable. In particular, he complains the evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. State's DNA expert (1) deviated from the protocol re- App. 1986); Krebsbach v. State, 962 S.W.2d 728, 734 quired for the test and (2) lacked expertise to sponsor the (Tex. App.--Amarillo 1998, pet. ref'd). DNA evidence. The State maintains Welch failed to pre- serve these complaints for review because he stated he [HN3] While reviewing the evidence, we are mind- had "no objection" when the written DNA results were ful that the jury alone judges the weight and credibility offered. We agree with the State. of the evidence. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). The jury also maintains the [HN5] When a defendant challenges the admissibil- power to draw reasonable inferences from basic facts to ity of certain evidence in a hearing outside the presence ultimate facts. Hernandez v. State, 939 S.W.2d 692, 693 of the jury, he need not renew his objection when the (Tex. App.--Fort Worth 1997, pet. ref'd). [*694] evidence is offered at trial in order to preserve his com- Moreover, it is within the province of the jury to recon- plaint for review. See TEX. R. EVID. 103(a)(1); Mora- cile evidentiary conflicts. Bowden v. State, 628 S.W.2d guez v. State, 701 S.W.2d 902, [**8] 904 (Tex. Crim. 782, 784 (Tex. Crim. App. 1982). App. 1986). [HN6] However, if at trial the defendant states he has "no objection" when the evidence is offered, Although Welch complains the State produced no he waives his admissibility complaint. Moraguez, 701 proof he was the assailant, he acknowledges Alice iden- S.W.2d at 904. Counsel for Welch stated there was "no tified him at trial. In effect, he argues the in-court identi- objection" when the State offered the written report con- fication was incredible because Alice was unable to firming Welch's DNA matched the DNA sampled from identify him before taking the [**6] stand. 2 [HN4] the rape kit to a certainty of 1/125,000,000. Thus, Welch Credibility issues are for the jury, not this Court, to de- waived his right to complain about the admissibility of cide. Accordingly, Welch's complaint is without merit. the DNA evidence. We therefore overrule his first point of error. 2 Welch does not argue the identification pro- cedure at trial was impermissibly suggestive. VENUE Second, Welch argues his possession of Evelyn's Welch's third point of error challenges the court's property, as well as his pawning of Alice's jewelry, denial of his request for a change of venue. Welch argues proves only that he was in possession of stolen property. that extensive media coverage of the Southeast Side This evidence, however, was also circumstantial proof Rapist story, combined with the news of his arrest for the that he robbed the Lopezes. From this evidence, the jury crimes, before his trial deprived him of his right to an could have believed Welch merely possessed stolen unbiased jury. The State maintains the trial court cor- property or inferred that he stole it himself. By its ver- rectly denied the change because Welch failed to meet dict, the jury indicated it inferred Welch robbed the his burden of proof. We agree with the State. Lopezes of the property; we may not disturb its decision. [HN7] We review the trial court's venue determina- Finally, Welch claims the DNA evidence failed to tion for an abuse of discretion. McGinn v. State, 961 establish identity because it was scientifically unreliable S.W.2d 161, 163 (Tex. Crim. App. 1998). Thus, we may and should not have been admitted. Regardless of not reverse the ruling unless it is unreasonable [*695] whether this evidence was properly admitted, we must in light of the record evidence. [**9] Id. The occur- consider it when reviewing for legal sufficiency. Rodri- rence of pretrial publicity creates no automatic presump- guez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. tion of prejudice; jurors need not come to court com- Page 5 993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **

pletely ignorant of the facts. Narvaiz v. State, 840 the stories or Welch being named as the suspect. Only S.W.2d 415, 428 (Tex. Crim. App. 1992). Rather, [HN8] one member stated he would be unable to set aside his a change of venue is required only where pretrial public- personal knowledge about the case, and he was excused ity is "so pervasive and prejudicial as to create a reason- for cause. Closer inspection of the voir dire dialogue able probability that an impartial jury cannot be empan- with the jury members eventually chosen reveals only eled even with the most careful voir dire." Id. two members had heard of Welch prior to trial. Four had never heard the Southeast Side Rapist story, and six had At the venue hearing, Welch presented evidence of heard the story but never heard of Welch. television, radio, and print media coverage. James For- syth, news division manager at WOAI radio, testified his In light of all this evidence, we cannot say the trial station provided extensive coverage of the story with court abused its discretion in denying Welch's request for emphasis of the crimes' effect on the community. Forsyth a change of venue. Due process does not guarantee estimated the majority of the stories aired near the time Welch a jury completely ignorant of the facts of his case. of the assaults and recalled Welch's name mentioned [**12] Because Welch failed to demonstrate an impar- only in conjunction with the news of his arrest. Finally, tial jury could not be selected even with a careful voir Forsyth recalled no coverage since Welch's arrest and dire, we overrule his third point of error. stated his belief that the level of publicity in this case was not unusual. Dale Rankin, coordinating producer for JURY INSTRUCTION ON LESSER-INCLUDED KENS television, sponsored the transcript and video of OFFENSE approximately eighty new stories and press conferences. In his fourth point of error, Welch argues the trial He recalled the bulk of the [**10] coverage aired while court erred in denying his request for a jury instruction the suspect was still at large and suggested this story on the "lesser [*696] included offense" of misde- received publicity out of concern for the safety of the meanor theft because the evidence merely showed he southeast Bexar County community. He was only possessed stolen property. The State maintains the trial vaguely familiar with Welch, recalling stories about court properly denied Welch's request because the evi- Welch's bond proceeding and the DNA test results. In dence did not support it. We agree with the State. sum, Rankin disagreed with the defense's position that his station's coverage was inflammatory or biased against [HN9] A defendant is entitled to a jury charge on a Welch. lesser included offense if (1) the lesser included offense is subsumed in the proof necessary to establish the of- A private investigator hired by Welch produced fense charged, Aguilar v. State, 682 S.W.2d 556, 558 twenty-one newspaper articles printed in the San Antonio (Tex. Crim. App. 1985); and (2) some evidence in the Express-News. Only five of them mentioned Welch in record "would permit a jury rationally to find" that the connection with the Southeast Side Rapist, and the front defendant, if guilty, is guilty only of the lesser offense, page of one article displayed Welch's picture. The major- Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. ity of these articles were written around the time the at- 1993). [HN10] If a defendant presents no evidence, and tacks occurred. Circulation of the paper for the period no evidence otherwise raises the issue of a lesser offense, from January through August 1997 ran approximately a charge is not required. Aguilar, 682 S.W.2d at 558. 238,000 on weekdays and 387,000 on Sundays. In addi- tion, the investigator stated he believed Welch's name [HN11] In reviewing a court's [**13] decision not was synonymous with the term Southeast Side Rapist. to give a charge on a lesser offense, we examine all of the evidence presented at trial, Lugo v. State, 667 S.W.2d Finally, Welch examined three criminal defense at- 144, 147 (Tex. Crim. App. 1984), regardless of whether it torneys, all with extensive trial experience in Bexar is credible, controverted, or conflicting, Hobson v. State, County, who opined Welch could not get a fair trial in 644 S.W.2d 473, 477 (Tex. Crim. App. 1983). However, the county. The State presented six affidavits [**11] the evidence may not be "plucked out of the record and asserting Welch could receive a fair trial in Bexar Coun- examined in a vacuum." Godsey v. State, 719 S.W.2d ty. Denying Welch's request, the trial court told him he 578, 584 (Tex. Crim. App. 1986). could reassert his request at the close of jury selection. The exchange between counsel and venire during 1. Aggravated Sexual Assault voir dire supports the State's contention that publicity With regard to the charge of aggravated sexual as- about Welch did not rise to the level of prejudice that sault, our inquiry ends with the first part of the test be- would prevent him from securing an impartial jury. Alt- cause the State did not have to prove Welch committed hough approximately one-half of the panel stated they misdemeanor theft to secure a conviction for aggravated were exposed to media coverage of the Southeast Side sexual assault. Compare TEX. PEN. CODE ANN. § Rapist story, hardly any of them recalled any details of 22.021 with § 31.03 (Vernon 1994). See also Ramos v. Page 6 993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **

State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (rec- cluding but not limited to . . . evidence of an extraneous ognizing sexual assault as a lesser included offense); crime or bad act that is shown beyond a reasonable doubt Cunningham v. State, 726 S.W.2d 151, 153 (Tex. Crim. by evidence to have been committed by the defendant[.]" App. 1987) (recognizing indecency with a child as same). TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3 Accordingly, the trial court did not err in denying (Vernon Supp. 1998). Furthermore, [HN14] we [**16] Welch's request with respect to the charge of aggravated bear in mind that while the trial court maintains authority sexual assault. to decide threshold issues of admissibility, the jury holds the power to decide whether the State has met its burden 2. Aggravated Robbery of proof. Mitchell, 931 S.W.2d at 953. [**14] The State was required, however, to prove During Welch's punishment hearing, the State made theft to successfully convict Welch of aggravated rob- a written proffer of how it would prove Welch sexually bery. See Campbell v. State, 571 S.W.2d 161, 162 (Tex. assaulted four other victims. 3 Welch objected, arguing Crim. App. 1978). Therefore, Welch survives the first the court should hold a hearing outside the jury's pres- part of the test. Welch cannot pass the second part of the ence to determine whether the State had proved these test, however, because the jury could not have rationally offenses beyond a reasonable doubt. The court denied found Welch guilty only of theft. this request, and the punishment phase proceeded. The The jury encountered substantial evidence upon victims testified, and DNA evidence identifying Welch which it could have based its verdict that Welch com- as the assailant in all instances was admitted. The trial mitted aggravated robbery. Alice identified him as the court instructed the jury it could not consider the extra- man who entered her home, exhibited a deadly weapon, neous offenses unless it believed the State proved them threatened her with imminent bodily injury, sexually beyond a reasonable doubt. 4 Finally, outside the jury's assaulted her, stole property from her home, and escaped. presence, the trial court orally ruled it found the State's DNA evidence confirmed Welch as the assailant. Finally, written proffer satisfied article 37.07. 5 pawn shop receipts indicated Welch pawned most of the stolen items. 3 These victims included an eleven year-old girl, a seventy-four year-old woman, and a wom- On the other hand, the evidence did not demonstrate an eight months pregnant. Welch could be guilty only of theft. There was no evi- 4 Welch makes no complaint about the court's dence Welch merely appropriated property without con- charge as it relates to the extraneous offenses. sent. See TEX. PEN. CODE ANN. § 31.03(b)(1) (Vernon [**17] 1994). Furthermore, the evidence neither showed Welch 5 The court announced, "Also for the record . . received the property from another nor indicated Welch . I will find that the State did prove each and knew the property was stolen by another. Id. § every extraneous offense beyond a reasonable 31.03(b)(2). Accordingly, [**15] Welch's fourth point doubt pursuant to the written proffer that was of error is overruled. tendered at the beginning of the punishment pro- ceeding. So that is just a finding that I made at ADMISSION OF EXTRANEOUS OFFENSE EVI- the beginning based upon the written proffer." DENCE DURING PUNISHMENT The trial court's treatment of Welch's objection In his final point of error, Welch asserts the trial complied with both the Code of Criminal Procedure's court erred during the punishment phase by admitting requirement regarding the burden of proof, as well as evidence of extraneous offenses without first hearing the Mitchell's mandate that the jury ultimately decide wheth- evidence outside the jury's presence to determine wheth- er the State met the burden. Welch supplies no authority er the State proved those offenses beyond a reasonable for the proposition that a court must hear evidence of doubt. The State contends that its written proffer pre- extraneous offenses outside the presence of the jury to sented to the court, combined with the court's subsequent determine admissibility during the punishment stage. oral ruling, [*697] satisfied its statutory burden. We Neither the statute nor precedent require a hearing. Con- agree with the State. tra Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. [HN12] We review the trial court's decision to admit App. 1995) (recognizing requirement of hearing, outside extraneous offense evidence with the abuse of discretion jury's presence, regarding a confession's voluntariness). standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Furthermore, even if the trial court erred, there was no Crim. App. 1996). [HN13] Extraneous offense evidence harm. See Mitchell, 931 S.W.2d at 954 (directing harm may be offered during the sentencing phase to assist the [**18] analysis where error found). Notably, Welch jury in determining punishment and is admissible "as to does not argue the State failed to prove the offenses be- any matter the court deems relevant to sentencing, in- Page 7 993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **

yond a reasonable doubt. We therefore overrule Welch's Because we find the evidence legally sufficient and final point of error. the trial court's rulings correct, we affirm Welch's con- viction. CONCLUSION Paul W. Green, Justice