Colella v. State

915 S.W.2d 834, 1995 Tex. Crim. App. LEXIS 97, 1995 WL 819083

• Court: Court of Criminal Appeals of Texas
• Decided: October 11, 1995
• Docket: 71541
• Status: Published

Opinions

OPINION

MEYERS, Judge.

In September of 1992, appellant was convicted of capital murder for murdering more than one person in the same criminal transaction. Tex.Penal Code Aim. § 19.03(a)(6)(A). After the jury affirmatively answered the submitted special issues, the trial court sentenced appellant to death. Tex.Code Crim.Proc.Ann. art. 37.071.¹ Appeal to this court is automatic. Art. 37.071 § 2(h). We will affirm.

In his first point of error, appellant contends that the evidence at his trial was insufficient to corroborate the testimony of the accomplice witness, Anthony “Red” Wilson.² He argues that the non-accomplice evidence is not sufficient to connect him to the crime. See art. 38.14, We disagree.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: Rick Taylor, David Taylor, and Michael Lavesphere arrived at South Padre Island in a white pick-up truck on the afternoon of September 12, 1991. While driving along the beach, they encountered a vehicle stuck in the sand. The three attempted unsuccessfully to help the occupants of the vehicle free the ear.

Shortly thereafter, appellant, his wife, Brenda Bowling, his sister, Lori, and Red drove up in Red’s Ford Bronco. Red, being experienced in towing cars out of the sand, offered to free the car for a fee. Rick, David, and Michael remained to watch the action. After Red successfully freed the car, Rick, David, and Michael asked Red, appellant, Brenda, and Lori if they would like to “party” together. The group declined, but Red testified that they told the men where they would probably be later if they would like to join them. Red, appellant, and Lori then went to drop Brenda off so she could get ready to go to work.

Between 5:00 and 6:00 that evening, Rick, David, and Michael met up with appellant and Red on the beach.³ The group drank alcohol and smoked marijuana. Brenda arrived later, having apparently been laid off from work, and joined in the “partying.” Red and Rick played Frisbee by the water while the others remained by the vehicles. At one point, either David or Michael began throwing sand on Brenda. She asked him to stop and chased after him. Appellant told him, “Hey, that’s my old lady. Why don’t you leave her alone.” He apologized to appellant saying that he did not know Brenda was married.

Brenda eventually left the party after arguing with appellant about his drinking. Red testified that she had asked him to stop appellant from drinking any whiskey because “[appellant] beats [her] whenever he gets mad or gets drunk.” However, Red refused to intervene. Shortly thereafter, the party broke up. Appellant and Red went to “look for a tow.” ⁴ Rick, David, and Michael left to dine in town.

On their way to dinner at about 8:00 p.m., Rick, David, and Michael happened upon Brenda who was hitchhiking along the side of the highway. They offered her a ride and she accepted. Rick testified that after about five to ten minutes Brenda became hysterical for some unknown reason and attempted to jump from their truck. Rick restrained her until the truck slowed down enough for her to get out without being injured. Rick denied that they raped Brenda. He further testified that she appeared uninjured when she left and that her clothes were not torn. The trio then drove on into town.

Sometime between 8:30 and 10:00 p.m., Brenda arrived at the trailer of Albin “Jack” Dunn. She was screaming hysterically and her clothes were wet and tom. She claimed that she had been raped by the guys in the white pick-up truck, but did not want to call the police because there was a warrant out for her arrest in Indiana.⁵ Victoria “Vikki” Larsen, who was living with Jack, got in her van and went to look for appellant.

Meanwhile, after driving around and stopping at a convenience store, appellant and Red decided to stop and bathe at some public showers along the beach. Afterwards, one or both of them stole a blue bag and a brown leather case from a boat at a nearby dock. The case contained a revolver and ammunition. Red and appellant then decided to go target shooting farther down the beach. After shooting for awhile, they got back into Red’s truck and began driving back up the road.

After locating Red and appellant out on the highway, Vikki informed them that Brenda had been raped. Red and appellant immediately left for Jack’s trailer. Appellant put the revolver in the waistband of his pants.

Upon arrival at Jack’s trailer, appellant was visibly upset. Vikki testified that appellant was “extremely agitated, like going crazy.” Appellant testified that when he saw Brenda he said “something to the effect that [he] wanted to go catch the sons-of-a-bitches and kill them.” Sherie Wilson, Jack’s neighbor, came over to the trailer.

Sherie, in an intoxicated state, began harassing Brenda. She said things like, “You can’t rape the willing.” A fight then broke out between Sherie, Brenda, and appellant. Sherie slapped appellant and Brenda went after her. Red finally got Sherie to get back into her truck, but she got out again. Appellant testified that “she started to come back at me. So I grabbed her and threw her on the ground.” Sherie then went to get her husband, Sid.

Sid testified that his intention upon arriving at the trailer was to hit appellant because appellant had hit his wife. However, appellant pulled the revolver on Sid before Sid could strike him. Appellant then began to run away and Sid chased him. Appellant fired two shots. He testified that he did not aim at Sid and that he fired just to scare him. Sid continued to chase him. When appellant fell in the sand, Sid rushed at him and appellant fired again. This time Sid backed off and appellant ran into the dimes. Red and Brenda eventually picked appellant up and they went back to their campsite.

After a near discovery by Sid at the campsite, appellant, Brenda, and Red decided to leave. Brenda and appellant packed up their belongings and placed them in Red’s Bronco. As they travelled north along the beach, they came across the white truck with the men that allegedly raped Brenda. They drove past the truck; then appellant told Red to turn around and go back. Red testified that appellant said, “Well, I’m going to get the son a bitches. I can’t let them get away with this.”

Appellant asked Brenda one more time if these were the men who raped her. She said yes. Red testified that appellant then jumped out of the Bronco, went over to the truck, shot one victim in the back of the truck, and then ran around to the driver’s side to shoot the other victim who was in the truck’s cab. Appellant, Red, and Brenda left, but appellant told Red that they needed to go back to move the truck so that it would not be found. Red complied.

Appellant got into the truck with the victims and drove north down the highway. Red and Brenda followed. Appellant eventually put the truck in the water on the bay side of the island and returned to Red’s Bronco. At some point, appellant threw the gun in the ocean. Red then drove appellant and Brenda to appellant’s mother’s home in Port Isabel. Red testified that when he left them, appellant had a billfold containing several dollar bills of unknown denominations. Red had never seen appellant with a billfold before.

Appellant borrowed money from his parents for bus tickets and they drove him and Brenda to the bus station in Victoria, Texas. They purchased their tickets at 6 a.m. on September 13th and boarded the bus for Terre Haute, Indiana.

The bodies of David Taylor and Michael Lavesphere and the partially submerged white truck were discovered the morning of the 13th. Luis Martinez, Cameron County Sheriffs Office Criminal Investigator, estimated that the pair was killed at approximately 2 a.m. that morning and that the type of bullet used could have been fired from a revolver. Dr. Lawrence Dahm, a pathologist, testified that both victims had been shot at close range. Taylor had been shot once in the head and Lavesphere had been shot twice, once in the face and once in the neck. The murder weapon was never recovered.

Rick Taylor testified that he, David, and Lavesphere parked on the beach and settled down to sleep at approximately midnight. David took the cab of the truck and Lave-sphere took the bed of the truck. Because there was no room left for Rick, he went to sleep in the dunes so that he would not be run over by any passing vehicles. That was the last he saw of his brother and Lave-sphere. He further testified both David and Lavesphere had substantial amounts of money in their possession prior to their deaths. Little money was found on the victims upon their discovery.

Turning now to appellant’s contention, we observe that article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

To determine whether an accomplice’s testimony is corroborated, we eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). Further, we have stated:

Corroborative evidence need not establish appellant’s guilt of the charged offense nor directly link appellant to the offense, but is sufficient if it “tends to connect” appellant to the offense. Each ease must be considered on its own facts and circumstances— on its own merit. Apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.

Id. (citations omitted).

Viewed in the light most favorable to the verdict, the non-accomplice evidence in the instant case established that: (1) appellant knew the victims because he had “partied” with them earlier that afternoon; (2) during the party, appellant warned one of the men to leave his wife alone; (3) Brenda later claimed that these very men are the ones that raped her; (4) appellant became enraged; (5) appellant had a revolver in his possession; (6) appellant stated that he “wanted to go catch the sons-of-a-bitches and kill them;” (7) Red, the accomplice, gave Brenda and appellant a ride to his mother’s home; (8) appellant had the opportunity to kill the victims because if they were killed at approximately 2 a.m., he still had time to kill them and arrive in Victoria by 6:00 a.m. (approximately a four-hour trip); (9) appellant and Brenda fled the island and the State.

In the instant case, the non-accomplice testimony places appellant in the company of the accomplice witness. It further tends to show he had a desire to kill the men, he had possession of a weapon of the type used in the murders, he had the opportunity to commit the murders,⁶ and he fled the State shortly thereafter.⁷ After eliminating all the accomplice testimony from the record, we determine the other facts and circumstances in evidence tend to connect appellant to the offense and corroborate Red’s testimony. See Richardson v. State, 879 S.W.2d 874, 880 (Tex.Crim.App.1993), cert. denied, — U.S. -, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995). Point of error one is overruled.

Appellant in his second point of error challenges the trial court’s failure at punishment to submit the second special issue regarding parties to the jury. See Article 37.071 § 2(b)(2).⁸ He avers that the jury convicted him as a co-defendant under the law of parties. Therefore, he argues that submitting the “anti-parties” issue was a mandatory requirement under Article 37.071, even though he made no request at trial to have the issue submitted.

The pertinent portions of the jury charge provide:

3.

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about the 12th day of September, 1991, in Cameron County, Texas, as alleged in the indictment,[⁹] the defendant, Paul Richard Colella, did then and there intentionally or knowingly murder more than one person during the same criminal transaction, to wit: that the said Paul Richard Colella did then and there intentionally or knowingly cause the death of the individuals, Michael Lavesphere and David Ray Taylor, by shooting the said Michael Lavesphere and David Ray Taylor with a firearm, and that the defendant, Paul Richard Colella, in so acting, was not acting under the immediate influence of sudden passion arising from an adequate cause, and that the said Paul Richard Colella did then and there intentionally or knowingly cause the death of the individuals, Michael Lavesphere and David Ray Taylor, by shooting them with a firearm, and that the defendant in so acting was not acting under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of capital murder and so say by your verdict.

9.

You are instructed that an “accomplice” as the term is here used, means anyone connected with the crime charged, as a party thereto, and includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before or during the time of the commission of the offense, and whether or not they were present and participated in the commission of the crime. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible or by both. Mere presence alone, however, will not constitute one a party to an offense.

The witness, Anthony R. Wilson, is an accomplice, if an offense was committed, and you cannot convict the defendant upon his testimony unless you first believe that his testimony is true and show that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, outside of the evidence of the said Anthony R. Wilson tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.

[Footnote added.]

It would seem that appellant contends paragraph 9 of the charge is a “parties charge.” Appellant is mistaken. In the context of the charge as a whole, paragraph 9 is merely an “accomplice-witness” charge explaining to the jury how it should weigh the testimony of Anthony Wilson. It is clear from paragraph 3 that appellant was charged as the primary actor in the offense and not under the law of parties as appellant argues.

We further note that the evidence does not show nor did the State argue during closing that anyone other than appellant is guilty of the murders in the instant case. The trial court did not err in failing to give the “anti-parties” charge at punishment. Point of error two is overruled.

In point of error three, appellant asserts that the trial court improperly granted the State’s challenges for cause for venire-members Bristol, Vermaas, Esparza, and Baughman in violation of Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). He claims that because the veni-repersons each demonstrated that they could follow the statutory scheme under Article 37.071, they were not challengeable merely because they opposed the death penalty.

Article 37.071 was revised by the Texas Legislature in 1991 and applies to all offenses occurring on or after September 1, 1991. See Tex.S.B. 880, Sec. 5, 72nd Leg., R.S. (1991) V.T.S.L.S. Chapter 838. The instant offense occurred on September 14, 1991. Therefore, the statutory scheme utilized in the charge at punishment stated:

SPECIAL ISSUE NO. 1

Is there a probability that the defendant, Paul Richard Colella, would commit criminal acts of violence that would constitute a continuing threat to society?

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SPECIAL ISSUE NO. 2

Taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, is there a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed?

See Article 37.071 § 2(b)(1) & (e).

Under Wainwright v. Witt, a venireper-son’s views on capital punishment support exclusion for cause only when they are such that they would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d 841; see also Vuong v. State, 830 S.W.2d 929, 942 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992); Moody v. State, 827 S.W.2d 875, 888 (Tex.Crim.App.), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). Under the former version of Article 37.071¹⁰ a veniremember’s acknowledgment that his attitude toward the death penalty would “affect” his deliberations was not sufficient to sustain a challenge for cause. Adams v. Texas, 448 U.S. 38, 49-50, 100 S.Ct. 2521, 2528-2529, 65 L.Ed.2d 581 (1980); Riley v. State, 889 S.W.2d 290, 300 (Tex.Crim.App., op. on reh’g, Dec. 21, 1994). Rather, the dispositive question was whether the venireperson could give honest answers to questions of fact, even if it meant that the death penalty might be assessed as a result. Id.

Under our new statutory scheme, however, jurors are called upon not only to answer factual questions but also to decide whether there are mitigating circumstances, including the “personal moral culpability” of the defendant, that would justify imposition of life imprisonment instead of death as an appropriate punishment. Because this task involves the exercise of moral discretion distinct from the determination of objective facts, we held in Staley v. State, 887 S.W.2d 885 (Tex.Crim.App.1994) that potential submission to the jury of an issue substantially the same as that submitted pursuant to statute in the instant cause¹¹ meant that prospective jurors might lawfully be excluded for their unwillingness to impose the death penalty under any circumstances, even if they were not first asked whether they could honestly answer the questions of fact also submitted for their consideration.

In Staley, the trial court actually instructed the jury to answer an additional, or fourth, special issue, not then authorized by statute. In that ease, veniremember Chandler responded that she did not “believe death is appropriate” and “that feeling would cause her to answer [the fourth special issue] ‘no’.” Id. Chandler had previously stated that she would base her answers to the special issues on the evidence. This Court held:

Today, we are presented with a juror who, under our former caselaw and absent the fourth special issue, arguably would not have been challengeable for cause. For while Chandler was opposed to the death penalty she may have been able to follow the law. See Adams, supra; Riley, supra. However, as for the fourth special issue, Chandler stated in no uncertain terms that she believed morally that death was not appropriate and she would answer that question in the negative. Recently the Supreme Court stated that jurors “whether they be unalterably in favor of or opposed to the death penalty in every case—by definition are ones who cannot perform their duties in accordance with the law, their protestations notwithstanding.” Morgan v. Illinois, 504 U.S. 719, 735, 112 S.Ct. 2222, 2283, 119 L.Ed.2d 492 (1992).

Id. at 894. Chandler was such a juror because she would always answer the fourth special issue to support a life sentence. Our holding in Staley applies equally to the new version of Article 37.071.

In the instant case, venireperson Bristol, like Chandler, emphasized his disagreement with the death penalty:

PROSECUTOR: Let’s say we’ve done that. Now we are in the guilty phase — I’m sorry, the punishment phase. And this jury has to determine punishment. And you are, let’s say, for example, one of these jurors. And you listen to the evidence, and you know, you say, “Well, you know even though I feel that person under the law deserves it, I have problems inside with it. I have reservations whether I can kill this.” Would you have reservations?

A. Yes. ⅜ ⅜ ⅜ ⅜ ⅜ ‡

Q. Do you feel that your feelings would affect you in making the decision?

A. Yeah.

Q. Yes? Do you feel that all the evidence may show but that you could not kill them?

A. I wouldn’t be — give it, kill another human being.

Q. So you do not feel that you could give it?

A. (Shaking head.)

Q. Okay. And it didn’t matter the circumstances, it’s just something personal?

A. Yeah.

Although during his voir dire as a whole Bristol seemed to state that he could follow the statutory scheme, his answers were nevertheless sufficient to support a rational conclusion by the trial judge that he would automatically find mitigating circumstances to justify avoiding assessment of a death sentence, regardless of the evidence adduced at trial. Hernandez v. State, 757 S.W.2d 744, 753 (Tex.Crim.App.1988). Therefore, the trial court did not abuse its discretion in granting the State’s challenge for cause.

The remaining three venirepersons, Vermaas, Baughman, and Esparza, each emphatically stressed that they would never answer the second special issue to give a death sentence under any circumstance. Any potential juror who states that he or she will automatically vote against the death penalty without regard to the evidence is announcing an intention not to follow the instructions to consider the evidence and to decide if it is insufficient to preclude the death penalty. See Morgan v. Illinois, 504 U.S. at 736-738, 112 S.Ct. at 2234, 119 L.Ed.2d 492. Therefore, again, the trial court did not abuse its discretion in granting the State’s challenges for cause. See Barnes v. State, 876 S.W.2d 316, 325 (Tex.Crim. App.), cert. denied, — U.S. -, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Point of error three is overruled.

In appellant’s fourth point of error, he claims that the trial court erred by denying his challenges for cause against venire-members Moreno, Reyes, and Torres. After his challenges for cause were denied, appellant peremptorily struck each of them.

When a trial court errs in denying a challenge for cause, the defendant is harmed only if he uses a peremptory strike and, thereafter, suffers a detriment from the loss of that strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). In order to preserve error, appellant must: (1) use all of his per emptory strikes; (2) ask for and be refused additional peremptory strikes; and (3) be forced to take an identified objectionable juror whom appellant would not otherwise have accepted had the trial court granted his challenge for cause or granted him additional peremptory strikes. Id.

In the instant case, appellant used only ten of his fifteen allotted peremptory strikes. See Article 35.15(a). Therefore, even if the trial court erred in denying the challenges for cause, appellant can not show that he suffered the loss of any strikes nor that he was harmed. Demouchette, 731 S.W.2d at 83. Point of error four is overruled.

In his fifth point of error, appellant asserts that the evidence was insufficient for the jury to make an affirmative finding that he would be a “continuing threat to society.” Article 37.071 § 2(b)(1) (special issue number one). He also argues that his mitigating circumstances were sufficient to warrant a sentence of life imprisonment as opposed to death. See Article 37.071 § 2(e). We will address the sufficiency of the “continuing threat” evidence first.

In reviewing the sufficiency of the evidence at the punishment phase, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could make the finding beyond a reasonable doubt. See Stoker v. State, 788 S.W.2d 1, 7 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990). The burden was on the State to prove the punishment issues beyond a reasonable doubt. Article 37.071 § 2(c).

A jury is permitted to consider a variety of factors when determining whether a defendant will pose a continuing threat to society.¹² See Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). The jury is entitled to consider all the evidence presented at the guilVinnocence phase of the trial, in addition to the evidence presented at the punishment phase. Valdez v. State, 776 S.W.2d 162, 166-67 (Tex.Crim.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990).

In some instances the circumstances of the offense and the events surrounding it may be sufficient to sustain a “yes” answer to the first special issue. See Vuong v. State, 830 S.W.2d 929, 935 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992); Stoker, 788 S.W.2d at 7. We have also held that it is not necessary for the State to buttress its case on future dangerousness with psychiatric testimony. Narvaiz v. State, 840 S.W.2d 415, 425 (Tex.Crim. App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Barnes, 876 S.W.2d at 321; Lafoon v. State, 548 S.W.2d 617, 620 (Tex.Crim. App.1976).

The evidence in the instant case revealed that appellant murdered two men with a revolver at point-blank range while they slept. Earlier, appellant had expressed a desire to kill the men because they had allegedly raped his wife. Additionally, a considerable amount of money had been taken from his victims and appellant tried to hide the bodies by driving the victims’ truck into the water. The evidence also showed that appellant had stolen the gun that same day and felt free to fire it at Sid, his “friend,” during an argument. Sid was not armed. Further, appellant threw Sherie to the ground because she had slapped him and was insulting him and Brenda. Although we hesitate to conclude that this evidence alone would support a finding of future dangerousness, the State presented more.

At the punishment phase of trial, the State introduced the following evidence: (1) in the summer of 1982, appellant was charged with child molestation which was later reduced to battery; (2) in December 1982, appellant confessed to burglary of a building, but he was not charged as part of a plea bargain; (3) in 1984, appellant was charged with false information for creating a false bomb scare; (4) appellant was then placed in the Jabalt School for Boys, an Indiana institution for delinquent minors, but was released because “he was not taking advantage” of the programs the school offered; (5) Monte Tosser, a Jabalt School counselor, testified that appellant had behavioral problems at the school including “physical altercations with peers;” (6) in December 1985, at the age of sixteen, appellant was convicted for burglarizing the residence of an 88 year-old woman; (7) knives from appellant’s home were found at the scene of the burglary; (8) appellant was sentenced as an adult to eight years for the burglary, but was paroled in 1990; (9) during his arraignment for the instant crime, appellant acted hostile toward a camera man and had to be restrained; (10) Officers Douglas Brentzinger and Joseph Newport of the Terre Haute Police Department¹³ each gave his opinion that he believed appellant would be a continuing threat to society because appellant was a “career criminal” and his crimes had gotten progressively worse; and (11) Monte Tosser also testified that he believed appellant would be a continuing threat to society.

We conclude there was sufficient evidence to support the jury’s affirmative finding that there was a probability that appellant would be a continuing threat to society.

Appellant also maintains that his mitigating evidence was sufficient to outweigh any other factors and warrant life imprisonment as opposed to death.¹⁴ This Court has previously held:

In Texas, this mitigating evidence is admissible at the punishment phase of a capital murder trial. Once admitted, the jury may then give it weight, if in their individual minds it is appropriate, when answering the questions which determine sentence. However, “[t]he amount of weight that the factfinder might give any particular piece of mitigating evidence is left to ‘the range of judgment and discretion’ exercised by each juror.”

Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim. App.1994); Johnson v. State, 773 S.W.2d 322, 324 (Tex.Crim.App.1989), affirmed in part, Johnson v. Texas, 509 U.S. 350, 113 S.Ct. , 125 L.Ed.2d 290 (1993). No burden of proof exists for either the State or the defendant to disprove or prove the mitigating evidence. Barnes, 876 S.W.2d at 330.

Unlike a particular offense or defense defined in the Texas Penal Code which contains specific elements that must be met, “mitigating evidence” is not specifically defined. Instead it is left to each individual juror’s own determination. In fact, Article 37.071 § 2(f)(4) defines “mitigating evidence” to be “evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” (Emphasis provided). There is no per se evidence that must be viewed by a juror as creating a mitigating effect.

Because the weighing of “mitigating evidence” is a subjective determination undertaken by each individual juror, we decline to review the evidence for sufficiency. We defer to the jury’s conclusion that the evidence was not sufficient to warrant a sentence of life imprisonment. Appellant’s fifth point of error is overruled.

Finding no reversible error, we affirm the judgment of the trial court.

1 . Unless otherwise indicated, all references to articles are to those in the Texas Code of Criminal Procedure.

2 . An accomplice witness is a discredited witness whose testimony, without corroboration, will not support a conviction. Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981). Both appellant and the State concede Red is an accomplice to the crime. Further, the trial court instructed the jury on accomplice-witness testimony. See point of error two, infra.

3 .Lori did not stay to "party.”

4 . Red and appellant would earn money by finding people who had gotten their vehicles stuck in the sand along the beach and then offer to tow them out for a fee.

5 . Appellant and Brenda were both from Terre Haute, Indiana, and had only recently moved to the Island.

6 . An accused’s opportunity to commit the offense may be a suspicious circumstance. Gill v. State, 873 S.W.2d 45, 49 (Tex.Crim.App.1994).

7 . We have repeatedly held that flight is evidence of a circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990).

8 . Article 37.071 § 2(b)(2) provides:

[I]n cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

9 .Further, the indictment was read to the jury as follows without objection:

“In the name and by the authority of the State of Texas, the grand jurors for the County of Cameron, State aforesaid, duly organized as such at the January term, A.D.1992, of the 107th Judicial District, in and for said County, upon their oaths in said Court, present that Paul Richard Colella, hereinafter called the defendant, on or about the 12th day of September A.D. One Thousand Nine Hundred Ninety-one, and anterior to the present of this indictment, in the County of Cameron and State of Texas, did then and there unlawfully intentionally and knowingly cause the death of Michael Lavesphere by shooting said Michael Lave-sphere with a firearm, and during the same criminal transaction the defendant did then and there intentionally and knowingly cause the death of David Ray Taylor, by shooting said David Ray Taylor with a firearm ... against the peace and dignity of the State,” signed by the form [sic] of the grand jury.

Although appellant’s, Brenda Bowling’s and Anthony Wilson’s names all appear on the actual indictment, no parties language is ever used. Additionally, appellant did not request a parties charge at the guilt/innocence phase of the trial.

10 . The former version of Article 37.071 (now codified at Article 37.0711) which is applicable to offenses occurring before September 1, 1991, provided for the following special issues:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Under this version of the statute, the jury was not required to consider what sentence a defendant would receive. The jury's only duty was to answer these abstract questions.

11 . The fourth special issue in Staley provided:

Do you find from the evidence beyond a reasonable doubt, after considering all mitigating evidence, if any thereby, and considering the defendant's level of culpability, character and background and the circumstances of the offense, that the penalty of death is the appropriate punishment?

12 . Among those factors are: (1) the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties; (2) the calculated nature of the defendant's acts; (3) the forethought and deliberateness exhibited by the crime’s execution; (4) the existence of a prior criminal record, and the severity of the prior crimes; (5) the defendant’s age and personal circumstances at the time of the offense; (6) whether the defendant was acting under duress or the domination of another at the time of the offense; (7) psychiatric evidence; and (8) character evidence. Keeton, 724 S.W.2d at 61.

13 . Officer Brentzinger and Newport were investigating officers for the 1985 burglary and were each familiar with appellant’s record.

14 . Appellant's mitigating circumstances included: (1) appellant was diagnosed as hyperactive at the age of four; (2) he attended special classes for the “emotionally disturbed”; (3) he attempted to hang himself when he was eight-years old and was admitted to a mental hospital for one month; (4) he was in therapy for a period of time; (5) his former employer, David Coffee, testified that the appellant was a good employee; (6) appellant told Coffee a few weeks before the murders that he was going to move "back North;” and (7) David Taylor's mother didn’t hate appellant for killing her son.