Corwin v. State

870 S.W.2d 23, 1993 Tex. Crim. App. LEXIS 143, 1993 WL 346483
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 15, 1993
Docket71072
StatusPublished
Cited by84 cases

This text of 870 S.W.2d 23 (Corwin v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Corwin v. State, 870 S.W.2d 23, 1993 Tex. Crim. App. LEXIS 143, 1993 WL 346483 (Tex. 1993).

Opinions

OPINION

CLINTON, Judge.

Appellant was convicted of murdering more than one person pursuant to the same scheme or course of conduct, a capital offense under V.T.C.A. Penal Code, § 19.03(a)(6)(B).1 The jury returned “yes” answers to the special issues under former Article 37.071, § (b), V.A.C.C.P., and punishment was assessed accordingly at death. Id., § (e). The appeal is automatic to this Court. Id., § (h). Appellant does not challenge the sufficiency of the evidence either to support appellant’s guilt or the jury’s affirmative answers to the special issues.

7. CRIME

In his fourteenth point of error appellant contends the trial court erred to deny his pretrial motion to dismiss the indictment as based upon a statute that is unconstitutionally vague. In his fifteenth point of error he contends that his conviction should be reversed for the same reason. Appellant consolidates his argument on these points of error on appeal, and we will treat them together.

Appellant argues that § 19.03(a)(6)(B) is defective in that, as he articulated it in his pretrial motion, and reiterates now on appeal, it “does not define scheme or course of conduct and arbitrarily allows any two murders regardless of time frame or location to constitute the same scheme or course of conduct.” He contends this indefiniteness renders the statute violative of the Due Process [27]*27Clause of the United States Constitution.2 He acknowledges that in order to prevail he must persuade the Court that the statute is vague as it applies to his own specific conduct — that the statutory language gave no indication that he could be susceptible to prosecution for capital murder. See, e.g., Vuong v. State, 830 S.W.2d 929, at 941 (Tex.Cr.App.1992); Johnson v. State, 853 S.W.2d 527, at 534 (Tex.Cr.App.1992).

Over the course of nine months in 1987 appellant abducted, sexually assaulted, and killed two women, and then attempted to abduct, and when he could not, killed, a third. In July of 1987 he abducted twenty-six year old Debra Ewing from the Huntsville Vision Center, where she worked. He apparently drove her to a remote area of Montgomery County, raped her in the front seat of his truck, and then strangled her with a ligature of some sort and stabbed her twice in the chest. In February of the same year appellant had abducted a seventy-two year old Alice Martin, who was taking her daily walk along a farm to market road in Madison County. He apparently drove her to a more remote area in Robertson County, raped her in the front seat of his truck, and then strangled her with a ligature and stabbed her four times in the back. On Halloween evening of 1987 appellant tried to force thirty-six year old Mary Risinger into his truck at a car wash in Huntsville. When she put up a struggle, he stabbed her in the throat, severing every major blood vessel in her neck.

At the punishment phase it was shown appellant had committed similar offenses both before and after the three offenses in 1987. In 1975 appellant abducted a high school classmate and drove her in her own car to a gravel pit, where he raped her. He then forced her out of the car, slashed her throat, stabbed her in the heart, and left her for dead. Miraculously, she lived. Appellant was assessed a forty year prison sentence for this offense. In October of 1988 appellant abducted a Texas A & M co-ed in her own vehicle and drove her to a park. There he sexually assaulted her, then tied her arms around a tree and slashed and stabbed her throat. She also survived. Appellant was serving time for this last offense during the instant prosecution.

Appellant argues that lack of definition of the phrase “same scheme or course of conduct” renders the statute so indefinite he cannot tell whether his conduct in killing more than one person during different transactions was a capital offense. Moreover, he contends, law enforcement authorities cannot tell any more readily than he can, and that leaves him open to arbitrary prosecution. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Appellant complains that, without further definition, it is unclear whether “same scheme or course of conduct” reaches over a span of nine months and four counties, as the conduct alleged in the indictment and proven at trial does.

Appellant is mistaken in thinking that § 19.03(a)(6)(B) is indefinite simply because it fails to specify that the different transactions during which more than one person are killed must occur over a definite period of time or in a definite location.3 Undoubtedly the Legislature intended a limiting principle in the phrase “same scheme or course of conduct.” There is no inherent constitutional requirement that there be such a limiting principle, however, much less that [28]*28it be expressed in temporal or spatial terms.4 Nevertheless, it is clear that the Legislature did not intend that every different-transaction multiple killing comprise a capital murder. And while the Legislature need impose no limiting principle, and while any limiting principle it does impose need not be articulated in terms of time or place, if the Legislature does impose a limiting principle, that principle must be sufficiently definite that the putative defendant, and the prosecuting officials, can ascertain which different-transaction multiple murders are capital, and which are not.

At the public hearing of the House Committee on Criminal Jurisprudence, conducted on February 11,1985, the sponsors of House Bill 8, which was later promulgated as § 19.03(a)(6), supra, made it clear that subsection (B) was meant to embrace “serial” murders.6 The Revised Bill Analysis for House Bill 8 gives as an example of same scheme or course of conduct one who, “e.g. kills all Senators over the course of a year for snubbing his legislation.” It is true that appellant’s conduct does not indicate this kind of over-arching objective or motive. But the example was not meant to be exhaustive. In our view, appellant had sufficient notice that his conduct was proscribed as a capital offense because committed “pursuant to the same ... course of conduct.”

In his brief appellant sets out the following definitions of “same,” “course,” and “conduct” taken from Webster’s New Universal Unabridged Dictionary:

“SAME, adjective: 1. Identical; alike in every respect. 2. Alike in degree, kind, character, or quality ...
COURSE, noun: ... 7. A regular mode or pattern of action or behavior; customary or established sequence of events; recurrence of events according to certain laws. 8. A way, path, or channel of movement ...
CONDUCT, noun: ... 4. Personal behavior; deportment; way that one acts
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Given these definitions, however, we do not believe § 19.03(a)(6)(B) is unconstitutionally vague as applied to appellant’s conduct.

In abducting, raping, and killing or attempting to kill five women in more or less the same way over the course of some thirteen years, interrupted only by a lengthy sojourn in the penitentiary, appellant can reasonably be said to have engaged in “a regular mode or pattern of ... behavior.”6

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Cite This Page — Counsel Stack

Bluebook (online)
870 S.W.2d 23, 1993 Tex. Crim. App. LEXIS 143, 1993 WL 346483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corwin-v-state-texcrimapp-1993.