Huggins v. State

795 S.W.2d 909, 1990 WL 146645
Court of Appeals of Texas·Decided November 21, 1990·No. 09-89-267 CR·Published·Cited by 55 cases

Opinions

OPINION

BROOKSHIRE, Justice.

The Appellant was indicted for the offense of murder. He pleaded not guilty. A jury found him guilty and assessed his punishment at 90 years confinement.

The record reflects that the victim was Edgar Barnett. Edgar was accompanied by the Appellant, going to the Player’s Club, on the night of August 14, 1988. An employee of the club testified that the victim and Appellant left together at about 1:30 a.m. on August 15th. The victim was driving a car which was identified by license plate numbers. The testimony from another witness, an acquaintance of the Appellant, indicated that at approximately 3:00 o’clock a.m. the acquaintance saw the Appellant driving the vehicle which had been previously driven by the victim. The Appellant yelled out something. The Appellant was driving the vehicle alone.

Later, a car wash employee testified that he found a blue-colored car in one of the wash stalls. It was the car that the victim had been driving. There was other very considerable and ample testimony. The sufficiency and adequacy of the evidence is not challenged on appeal.

The first ground of error is that error was committed in admitting into evidence during the punishment stage — not the guilt or innocence stage — extraneous, unadjudicated offenses as testified to by several witnesses. One female witness testified that at a prior time she and the Appellant left a bar together and went to her apartment. She went to sleep. When she awoke around three or four o’clock in the early morning, she discovered her purse and contents were scattered over the floor. Her car keys and her car were missing. She testified her automobile was later recovered but it was trashed out. This witness also stated that no charges were filed in connection with these offenses.

Another witness, one Barbara Bradshaw, testified that she saw Appellant going through her purse on the evening prior to the demise of Barnett. An additional witness testified that she saw Appellant going through a girl’s purse. This testimony was offered at the punishment stage.

The State insists that section 3 of Article 37.07 of the Texas Code of Criminal Procedure is dispositive of the Appellant’s first point of error and the disposition is adverse to Appellant. Section 3 was amended in 1989. This section 3(a) provides that regardless of the plea and whether the punishment is to be assessed by the trial court or the jury, evidence may be offered by the [911] State and the defendant as to any matter the court deems relevant to sentencing. TEX.CODE CRIM.PROC.ANN. art. 37.07 § 3(a) (Vernon Supp.1990). The evidence must be permitted by the Rules of Evidence.

We hold that the language that evidence may, as permitted by the Rules of Evidence, be offered by the State and the defendant as to any matter the court deems relevant to sentencing is additional to and separate and independent of the “prior criminal record of the defendant.” This relevant evidence is also independent of and separate from evidence of the defendant’s general reputation and his character. TEX.R.CRIM.EVID. 401 defines relevant evidence: the evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. We note that the language used is “any tendency to make the existence of any fact that is of consequence to the determination of the action.” Part of the determination of the action, of course, was the assessment of punishment. We hold that the evidence submitted is of consequence to that determination. Point of error number one is overruled.

As an additional and separate, distinct basis of our overruling point of error one, we note that the legislature has provided that any matter that the court deems relevant to sentencing is admissible. We hold that this invokes the abuse of discretion test. It is further held that the trial judge did not under this record abuse his discretion.

We conclude that the solons of Texas overrule Murphy v. State, 777 S.W.2d 44 (Tex.Crim.App.1988).

Furthermore, TEX.CODE CRIM. PROC.ANN. art. 37.071(a) (Vernon Supp. 1990), which deals with capital murder cases, contains mandatory language which is very similar to that language used in article 37.07, sec. 3. In relevant part, article 37.071(a) entitled “Procedure in capital case”, the wording reads:

In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence.

Article 37.07, sec. 3 reads in relevant, paramount part:

(a) ... [Ejvidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character....

One article deals with relevant to sentence and the other relevant to sentencing. We hold there is no realistic difference or distinction. Our Court of Criminal Appeals has held under article 37.071(a) that evidence and proof of unadjudicated extraneous offenses at the punishment stage is admissible. Gentry v. State, 770 S.W.2d 780 (Tex.Crim.App.1988); cert. den’d, — U.S. —, 109 S.Ct. 2458, 104 L.Ed.2d 1013 (1989). Appellant’s point of error number one lacks merit.

The second point of error is that the jury should have received a charge on the law of aggravated assault. We disagree. No error was committed. In passing upon this contention we must reach a conclusion on an analysis involving two concepts: (a) the lesser included offense must be included within the proof that was necessary to establish the offense that was charged against the accused; (b) it is necessary that there exists some string or some specie of evidence in the record demonstrating that if the defendant is guilty then the defendant is guilty only of the lesser offense. Salinas v. State, 644 S.W.2d 744 (Tex.Crim.App.1983); Daniels v. State, 633 S.W.2d 899 (Tex.Crim.App.1982). Our ultir mate determination on appeal in deciding whether a charge on a lesser offense is required is that of whether there is some evidence in the record raising the issue of the lesser offense; also that evidence must indicate that the accused is guilty only of the lesser offense. See Borns v. State, 674 S.W.2d 879 (Tex.App.-Dallas 1984, no pet.). We cannot make the determination in this appeal that the Appellant, if he was guilty at all, was guilty only of aggravated [912] assault. He was clearly guilty of murder on this record. Point of error two is overruled.

Next, the Appellant complains of prejudicial and manifestly improper jury argument delivered by the prosecution. The Appellant claims that a mistrial should have been granted during the punishment stage,

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Huggins v. State, 795 S.W.2d 909, 1990 WL 146645 (Tex. Ct. App. 1990).

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