Callins v. State

780 S.W.2d 176, 1989 Tex. Crim. App. LEXIS 173, 1986 WL 63

• Court: Court of Criminal Appeals of Texas
• Decided: September 27, 1989
• Docket: 69023
• Status: Published

Opinions

OPINION

CAMPBELL, Justice.

Appellant was convicted by a jury, in a single trial, of one capital murder and two aggravated robberies. The jury returned affirmative findings to the special issues under Art. 37.071, Y.A.C.C.P., for the capital murder conviction. The trial judge assessed punishment at death. The jury assessed punishment for each of the aggravated robbery convictions at life in prison and a $10,000 fine.

Appellant appealed his capital murder conviction directly to this Court, raising nineteen grounds of error.¹ We will address two of those grounds. In Ground of Error No. 2, appellant challenges the sufficiency of the evidence to support the deliberateness of his conduct. Art. 87.071(b)(1), V.A.C.C.P. In Ground of Error No. 12 appellant argues that the trial court failed to grant his motion to sever the offenses, thereby forcing appellant to be tried for more than one felony offense. We will overrule Ground of Error No. 2 but reverse on Ground of Error No. 12.

On June 27, 1980, at approximately 4:00 p.m., appellant, armed with a gun, entered a bar in Tarrant County. Three patrons and three employees of the bar were present. Appellant ordered the bartender to put money in a bag. He ordered the other five occupants to empty their pockets onto the bar or a pool table. Appellant threatened to kill anyone who held anything back. Allen Huckleberry, who was sitting at the bar, did not surrender his wallet quickly enough to suit appellant, and appellant shot him in the neck, causing him to bleed to death. Appellant went through the deceased’s pockets, gathered the property from the five other victims, including George Torrez and Kathy Harmon, and fled. According to a witness in the bar, before fleeing, appellant told the remaining occupants of the bar to “take care of [the deceased]” and to “give him [appellant] a few minutes, then [they] could call somebody to help the deceased.”

On August 19, 1980, appellant was charged, in a single eight count indictment, with capital murder, murder and aggravated robbery of Allen Huckleberry, aggravated robbery of George Torrez, aggravated robbery of Kathy Harmon, and aggravated robbery of the three other persons present in the bar. However, the State waived three of the aggravated robbery counts and proceeded to trial on the five remaining counts (capital murder, murder, and aggravated robbery of Allen Huckleberry, aggravated robbery of George Torrez and aggravated robbery of Kathy Harmon). (R. 1-3-4).

On May 12,1982, the jury was sworn and the trial began. On May 18, 1982, prior to submission of the charge to the jury, appellant made the following objection:

The Defendant further objects to the submission of the Court’s Charge in the form submitted for the reason that the Defendant, in making its (sic) decisions originally upon whether or not to move for severance of certain felony charges from other felony charges upon the trial of this cause, the Defendant relied upon the state of the law as it existed at that time and since this trial has begun the landmark decision in the McWilliams case has in effect changed the law.[²] That is the landmark decision wherein the Texas Court of Criminal Appeals eliminated the doctrine of carving, has now caught the Defendant flatfooted and surprised and off guard and had he known of this decision prior when he relied upon the old state of the law, he would have elected not to be tried in any more felonies alleged in this indictment than the law required him to and would have in fact made a motion to sever prior to trial.[³] That the very decision in McWilliams has now taken advantage of the Defendant’s reliance on the former state of the law, deprived him of a fair trial. Defendant objects to the Court’s Charge in that particular and also moves for a mistrial on that basis. (R. XXXII-669-670).

The trial court replied:

... [W]ith regard to your objections, ... the Court understood you to reurge or to urge a Motion for a Mistrial based on the principles contained in McWilliams versus State. You are entitled to a ruling on that motion and the motion is denied.[⁴] (R. XXXII-677).

The jury first returned a verdict finding appellant guilty of the capital murder of Allen Huckleberry and of the aggravated robberies of George Torrez and Kathy Harmon. The jury then assessed punishment at confinement for life in the Texas Department of Corrections and a $10,000 fine for each of the aggravated robberies. The jury also answered the two special issues affirmatively, and the trial court assessed punishment at death.⁵

In Ground of Error No. 2, appellant argues that there is insufficient evidence in the record to support the jury’s finding on the first special issue. Article 37.071(b)(1), supra, requires the jury to find that appellant’s conduct, which caused the death of Allen Huckleberry, was committed deliberately and with the reasonable expectation that the death of Allen Huckleberry would result. In particular, appellant argues that his instruction to his victims that they seek medical aid for Allen Huckleberry was inconsistent with a finding that his acts were committed deliberately and with the reasonable expectation that death would result.

The State responds that there was sufficient evidence for the jury to find that appellant’s acts were deliberate and done with the reasonable expectation that the death of Allen Huckleberry would result. We agree.

In deciding the question of deliberateness, a jury must find that the State proved the issue beyond a reasonable doubt. Art. 37.071(c), V.A.C.C.P. Therefore, while this Court reviews sufficiency of the evidence in the light most favorable to the jury’s verdict, we also must determine whether any rational trier of fact could have found the disputed question to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 5.W.2d 155 (Tex.Cr.App.1981).

Appellant entered a bar with a loaded firearm, began to rob the occupants and announced his intention of shooting anyone who held anything back. Appellant then decided that Allen Huckleberry was moving too slowly and shot him in the neck at close range. There was no evidence that the deceased had provoked the attack in any manner. From these circumstances alone we find that there was sufficient evidence for the jury to find .that appellant’s acts were deliberate and done with the reasonable expectation that death would result. See Ex parte Alexander, 608 S.W.2d 928, 931 (Tex.Cr.App.1980) (defendant’s acts show deliberateness when he obtained and loaded weapon in anticipation of police officer returning to patrol car; defendant’s acts show reasonable expectation that death will result when victim is shot in head at close range with 357 magnum revolver). See also Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

While appellant may have shown some concern for Mr. Huckleberry’s life after shooting him, that concern does not necessarily negate other evidence of the deliberateness of his acts prior to shooting him. We find, therefore, that a rational trier of fact could have found that appellant’s conduct was deliberate. Ground of Error No. 2 is overruled.

In Ground of Error No. 12, appellant argues that the trial court erred by overruling his timely motion to sever, thereby permitting a single trial on one count of capital murder of Allen Huckleberry and two counts of aggravated robbery of George Torrez and Kathy Harmon. Appellant, invoking V.T.C.A., Penal Code, Chapter 3, § 3.04(a), argues that he had a mandatory right to sever the capital murder charge from the aggravated robbery charges.⁶

Appellant incorrectly argues that § 3.04(a), supra, grants him a mandatory right to severance. The mandatory right to a severance, under § 3.04, supra, only applies to joinder of property offenses.⁷ Overton v. State, 552 S.W.2d 849 (Tex.Cr.App.1977); Waythe v. State, 533 S.W.2d 802 (Tex.Cr.App.1976). In the instant case, appellant sought to sever a capital murder count from two aggravated robbery counts. However, capital murder is not a property offense. It is listed as an offense against the person under Title 5 of the Penal Code. V.T.C.A., Penal Code, § 19.03. Appellant’s right to sever the capital murder count, therefore, can not be supported by § 3.04(a), supra.⁸ However, the right to force an election, which follows from implicit statutory restrictions relating to the manner in which nonproperty offenses may be joined in an indictment, is supported by our precedents.

We recently held that the Legislature, by its amendment of Article 21.24, V.A.C.C.P., has implicitly prevented the State from alleging, in a single indictment, two or more nonproperty offenses if those offenses arose out of the same criminal “incident, act or transaction.”⁹ Drake v. State, 686 S.W.2d 935, 944 (Tex.Cr.App.1985). From our reasoning in Drake, supra, we must also conclude that Article 21.24, supra, implicitly prevents the State from alleging both property and nonproperty offenses together in the same indictment. In addition, our common law has long prevented the State from alleging, in a single indictment, more than one nonpro-perty offense arising out of separate transactions. See Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125, 128 (1956) (“An indictment charging separate and distinct offenses in different counts is subject to the objection of misjoinder_”). See also Smith v. State, 101 Tex.Cr.R. 615, 276 S.W. 924 (1925); Goode v. State, 57 Tex.Cr.R. 220, 123 S.W. 597, 600 (1909).

Taken together, these pleading limitations prevent the State, in the presence of an objection, from alleging more than one nonproperty offense in a single indictment, regardless of the number of transactions involved. Consequently, distinctions based upon the number of “transactions” present have been rendered meaningless for misjoinder purposes.¹⁰ For the State to avoid joinder problems, an indictment for a nonproperty offense, whether arising from one transaction or separate transactions, should contain only one count¹¹ and as many paragraphs¹² as are necessary to allege the various manner and means of committing the one alleged offense.¹³

To avail himself of the pleading limitations implicit in Article 21.24, supra, a defendant should 1) file a pre-trial motion to quash the indictment or 2) urge, sometime during trial, that the State make an election. Blackwell v. State, 51 Tex.Cr.R. 24, 100 S.W. 774, 775 (1907).¹⁴ Failure to object will result in waiver of the pleading requirements implicitly created by Article 21.24, supra. Article 1.14, V.A.C.C.P. Drake, supra, at 944.¹⁵

A defendant’s pre-trial motion to quash should be granted by the trial court if the State has misjoined nonproperty offenses in a single indictment. However, a trial court has the discretion to deny a motion to quash and may, instead, force the State to elect a single offense for prosecution. Smith v. State, 64 Tex.Cr.R. 454, 142 S.W. 1173, 1175 (1912).

A defendant’s timely motion to force the State to elect must be granted if the State has misjoined nonproperty offenses in a single indictment. Crosslin v. State, 90 Tex.Cr.R. 467, 235 S.W. 905, 906 (1921). Once the State has been forced to elect, any misjoinder error is cured. Campbell, supra.

The trial court has discretion to delay the election, once requested, until submission of the charge to the jury. However, if the trial court unnecessarily delays the election and thereby prejudices a defendant, then the trial court may be found to have abused its discretion. Crosslin, supra, 235 S.W. at 906-907, and cases cited therein.

If a trial court fails altogether to require the State to cure its misjoinder, whether by denying a motion to quash the indictment or by denying a motion to force an election, an appellate court must reverse the conviction. To do otherwise would allow the State to disregard the implicit pleading restrictions of Article 21.24, supra, and thereby obtain multiple convictions from a single indictment in the face of a defendant’s protestations. Allowing such a result would “thereby do violence to [the defendant’s] rights to an election,” Smith v. State, 90 Tex.Cr.R. 273, 234 S.W. 893, 894 (1921).

In the instant case, the State charged eight distinct counts in a single indictment. See facts, ante, at p. 179-180. Three counts were waived prior to trial, thus effectuating a partial election. Five separate counts then remained: capital murder, murder and aggravated robbery of Allen Huckleberry; aggravated robbery of George Torrez; and aggravated robbery of Kathy Harmon. Under these circumstances, we find that this indictment was subject to an objection for misjoinder for two reasons. First, it alleged more than one non-property offense (capital murder and murder). See Drake, supra, at 944. Second, it alleged nonproperty offenses and property offenses within the same indictment. See discussion, ante, at p. 183.

Appellant did not file a motion to quash the indictment on the basis of misjoinder.¹⁶ However, appellant, after becoming aware of this Court’s decision in McWilliams, supra, objected to the charge and moved for a mistrial prior to submission of the charge to the jury. In objecting to the charge, appellant made it clear that he was seeking either a severance, an election or a mistrial. Given these three options, it is readily apparent the trial court was required to sustain appellant’s request for election, such request coming prior to submission of the charge to the jury and directing the court’s attention to the misjoinder of the various offenses.¹⁷ Therefore, the trial court should have required the State to elect between the five offenses alleged in the indictment. The State then could have cured the misjoinder by proceeding on the property offenses or, in the alternative, on one of the nonproperty offenses.¹⁸

Ground of Error No. 12 is sustained. We reverse the portion of the judgment convicting appellant of capital murder and remand to the trial court.

W.C. DAVIS, McCORMICK, TEAGUE, MILLER and WHITE, JJ., concur. ONION, P.J., not participating.

1 . Appellant appealed his aggravated robbery convictions to the Second Court of Appeals. That court dismissed the appeal, holding that it lacked jurisdiction. Callins v. State, 680 S.W.2d 680 (Tex.App.—Fort Worth 1984). We subsequently granted appellant's petition for discretionary review and today reverse the judgment of the Court of Appeals and remand that case for consideration of appellant's grounds of error. Callins v. State, 726 S.W.2d 555, 558 (Tex.Cr.App.1986). Therefore, in the instant case, we restrict our review to appellant’s capital murder conviction,

2 . On May 12, 1982, this Court decided Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982) (Opinion on Rehearing), which abandoned the carving doctrine.

3 . All emphasis is supplied by the author of this opinion unless otherwise indicated.

4 . At the same time, the trial court also denied a written motion to sever, which had been filed by appellant prior to trial. (R. 1-98-99; R. XXXII-677). However, the pre-trial mijtion, which had already been denied once prior to trial, did not seek to sever the capital murder count from the remaining counts on the basis of misjoinder. Instead, it was a broad constitutional attack on the capital murder statute as being in conflict with Chapter 3 of the Penal Code. (R. XXVII-589). As such, the pre-trial written motion is not relevant to our disposition of the instant case.

5 . The trial court submitted the guilt/innocence and punishment issues in trifurcated stages. The jury decided (1) guilt/innocence, (2) punishment on the aggravated robberies and, then, (3) punishment on the capital murder. While we might have doubts as to the appropriateness of such proceedings, and while appellant has several grounds of error addressing same, we need not address those grounds in light of our disposition of the instant case.

6 . Chapter 3, § 3.04(a), supra, provides: Whenever two or more offenses have been consolidated or joined for trial under Section '3.02 of this code, the defendant shall have a Tight to a severance of the offenses. Section 3.02 creates permissive joinder of "all offenses arising out of the same criminal episode." A ‘“criminal episode’ means the repeated commission of any one offense defined in Title 7” of [the Penal Code.

7 . Property offenses are those offenses listed under Title 7 of the Penal Code. See n. 6, ante, at p. 181. Nonproperty offenses include all offenses other tjian those listed under Title 7 of the Penal Code. , '

8 . Appellant, citing Rice v. State, 646 S.W.2d 633 (Tex.App.—Houston [1st] 1983, pet. ref'd), argues that § 3.04(a), supra, has been applied to nonproperty offenses in giving a defendant a mandatory right to sever. To the extent that Rice, supra, supports such a conclusion, it is overruled.

9 . Generally, "transaction” has come to mean a criminal event and the various particular offenses committed within that event. See Drake, supra, at pp. 945-49 (Appendix). The starting and ending point of that event depends upon which definition this Court applies to the facts. Id. At least five such definitions have been developed, although no single definition has been consistently applied. See Practice Commentary, V.T.C.A., Penal Code, § 3.01. See also Ex parte Ellison, 699 S.W.2d 218 (Tex.Cr.App.1985) (presence of one transaction is “obvious”); Ex parte Siller, 686 S.W.2d 617, 618 (Tex.Cr.App.1985) (transaction = whatever parties agree it means); Drake, supra, at 940, n. 3 (transaction = all conduct directed at accomplishment of a single criminal objective); id., at 947 (transaction = all conduct resulting from single guilty impulse); McIntire v. State, 698 S.W.2d 652, 656 (Tex.Cr.App.1985) (transaction = all conduct occurring within close time frame and with single guilty intent running through acts); Fortune v. State, 699 S.W.2d 706, 707 (Tex.App.—Beaumont 1985, pet. pending) (transaction = conduct directed at a particular victim).

10 .“Transactions” are still relevant for the purpose of limiting convictions resulting from a single general jury verdict. See Art. 37.07 V.A. C.C.P. and cf. Ex parte Siller, 686 S.W.2d 617 (Tex.Cr.App.1985) (one of two convictions in same trial reversed, in absence of objection, because both nonproperty offenses arose out of the same transaction) with Drake, supra (both convictions in the same trial affirmed, in absence of objection, because each nonproperty offense arose from separate transactions). Cf. also Ellison, supra (one of two convictions in same trial reversed, in absence of objection, because both nonproperty offenses arose from same transaction); Mclntire, supra, at 655, n. 2 (objection required before reversal of multiple convictions arising from separate transactions). But see and cf. Arts. 37.10 & 44.24 and Wooten v. State, 111 Tex.Cr.R. 524, 15 S.W.2d 635, 636 (1929) (appellate court lacks authority, even in the absence of an objection, to reform jury verdict to reflect single conviction; reversal of each conviction is required; number of transactions irrelevant). See also and cf. Ex parte Johnson, 697 S.W.2d 605, 612 (Tex.Cr.App.1985) (Clinton, J., dissenting). Moreover, these differences continue despite the absence of any use of the term "transaction” in Article 37.07, supra. However, we have no opportunity presently to resolve these ambiguities because appellant only seeks reversal on the basis of misjoinder. See Ground of Error No. 12, ante, at p. 179.

11 . A "count” is the portion of an indictment that charges a distinct statutory offense. 22 Tex. Jur.3d 665, Criminal Law, § 2370. The presence of more than one count in an indictment, therefore, would necessarily mean that more than one offense had been charged.

12 . A "paragraph” is a subset of a count and is used to charge alternative methods of committing the same statutory offense. Art. 21.24(b), V.A.C.C.P.; Riley v. State, 658 S.W.2d 818 (Tex.App.—Fort Worth 1983, no pet.). The presence of separate paragraphs within a single count, therefore, would not signify the charging of more than one statutory offense, but rather signify the alternate manner and means of committing the same statutory offense. Riley, supra (alternative manner or means of committing murder may be charged in separate paragraphs of same indictment).

13 . We do not decide whether the implicit pleading requirements of Article 21.24, supra, allow the State to join nonproperty offenses through separate indictments. However, even if the State could successfully join nonproperty offenses for a single trial through separate indictments, it would still face at least two remaining procedural hurdles that might prevent it from obtaining more than one conviction in a single trial; First, a defendant might still have a constitutional right to request severance of the offenses into i separate trials. Art. I, § 10, Tex. Const.; Ex parte Quintanilla, 151 Tex.Cr.R. 328, 207 S.W.2d 377, 378 (1948) ("... [T]he trial of ⅛11 four separate cases before the same jury at the same time over [defendant’s] objection deprived him of the valuable right of a trial before an impartial jury in contravention of Art. I, Sec. 10, of the State Constitution_”). Second, even in the absence of an objection, it would seem that a trial court only has authority to accept a single general verdict from the jury in a trial for nonproperty offenses. Art. 37.07, supra; Siller, supra. See n. 10, ante, at p. 182. We believe that, following our abandonment of the carving doctrine, the State effectively will have to obtain multiple convictions for nonpro-perty offenses through multiple trials until the Legislature alters pleading and verdict restrictions. Given the mandatory right of severance under § 3.04, supra, the same practical result is likely to follow when the State attempts to obtain multiple convictions for property offenses.

14 . Our reliance upon older cases is the result of an absence of any recent decisions involving how and when a defendant must object to mis-joinder. The absence of recent decisions is understandable. Prior to May 12, 1982, a defendant could rely upon the more protective carving doctrine to avoid being convicted for more than one offense. McWilliams, supra. Consequently, there was little need to force the State to an election.

15 . Even the constitutional right to severance may be waived. Royal v. State, 391 S.W.2d 410 (Tex.Cr.App.1965); Watson v. State, 488 S.W.2d 816, 818 (Tex.Cr.App.1973) ("It is apparent that since no objection was made, [defendant] waived his :right to a separate trial [on three separate charges <?f sale of heroin].").

16 . His failure to do so is understandable due to the state of the law, with respect to the carving doctrine, prior to the beginning of his trial.

17 . We acknowledge that appellant’s objection tended to group these three distinct forms of relief (severance, election and mistrial) into a single complaint. See facts, ante, at pp. 179-180. However, appellant’s objection sufficiently apprised the trial court of his request for an election, given the fact that appellant addressed the abandonment of the carving doctrine. We need not decide the merit of appellant's request for severance and mistrial because we find the request for an election sufficient to require a reversal.

18 .The State could have proceeded on the three counts of aggravated robbery because Article 21.24(a) permits the joinder of property offenses in a single indictment. However, the State, alternatively, could have proceeded on only one of the nonproperty counts (capital murder or murder) because Article 21.24, supra, implicitly prevents the State from alleging more than one nonproperty offense in a single indictment. Drake, supra. Had the State elected to proceed on the capital murder count, the trial court arguably could have submitted lesser included offenses in the jury charge. See Arts. 37.08 & 37.09, V.A.C.C.P.; Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976) (Opinion on Rehearing); Aguilar v. State, 682 S.W.2d 556 (Tex.Cr.App.1985).