Opinion
No. AP-73,431
Delivered: October 31, 2007. DO NOT PUBLISH
On Direct Appeal from Cause No. 782657 In the 262nd Judicial District Court Harris County.
OPINION
Appellant was convicted of capital murder in April 1999. Tex. Penal Code Ann. § 19.03(a). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). Appeal to this Court is required. Art. 37.071 § 2(h). We affirmed the conviction, but vacated the sentence and remanded the cause to the trial court for a new hearing on punishment. Thompson v. State, 93 S.W.3d 16 (Tex.Crim.App. 2001). At the retrial on punishment, the jury answered the special issues as before, and appellant was again sentenced to death. This appeal followed. After reviewing appellant's eight points of error, we find them to be without merit and affirm the trial court's sentence of death. In his seventh point of error, appellant claims that the evidence is insufficient to support a finding beyond a reasonable doubt that there is a probability that appellant will commit criminal acts of violence that constitute a continuing threat to society. Appellant points to the testimony of defense expert Dr. Daneen Milam, who testified that, despite appellant's narcissistic personality, he had previously demonstrated that he would conform in a structured prison environment. Appellant contends that, in light of Milam's testimony, no rational factfinder could have concluded beyond a reasonable doubt that there is a probability that appellant will be a future danger. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307 (1979). Evidence presented at appellant's punishment retrial showed that appellant and the victim, Glenda Dennise Hayslip, were romantically involved for nearly a year, but appellant became increasingly possessive, jealous, and abusive. Hayslip met Darren Cain, and the two began dating. Around 3 a.m. on April 30, 1998, police responded to a disturbance call at Hayslip's apartment and found appellant, Cain, and Hayslip arguing. No one wanted to press charges, so police told appellant to leave the complex and warned him not to return. Appellant returned with a gun three hours later and shot both Hayslip and Cain. Cain had multiple gunshot wounds to his neck and chest, and Hayslip was shot at close range in the face. Cain died at the scene, and Hayslip died in the hospital a week later. A few hours after committing the murders, appellant went to the home of Diane Zernia and confessed to her. After calling his father, appellant surrendered to authorities. Appellant later phoned Zernia from jail and tried to persuade her to lie about what he had told her, but she refused. Appellant also attempted, from prison, to solicit someone to kill Zernia and was later indicted for solicitation to commit capital murder. The State also presented evidence that appellant was associated with the Aryan Brotherhood gang in prison. A fellow jail inmate testified that appellant gave him a list of people who appellant believed were potential witnesses and told the inmate that he would pay him to "eliminate" the witnesses or otherwise make sure that they would not appear in court. The inmate turned the list over to the police. The State also presented evidence that appellant began committing crimes as a juvenile. In 1984, while living with his parents in an upper-middle-class neighborhood in Colorado, appellant committed a string of crimes that resulted in over $60,000 of damage to homes and property. While on probation from the youth center, appellant stole his father's motorcycle, ran away, and committed a variety of crimes. He was arrested again in 1987 and sentenced to a juvenile facility. Appellant had problems with drugs and alcohol from an early age. He married, but later abandoned his wife and two children. In 1996, appellant was arrested for transporting illegal immigrants from Mexico. From this evidence, a rational jury could determine, beyond a reasonable doubt, that there is a probability that appellant would commit criminal acts of violence in the future so as to constitute a continuing threat, despite Milam's testimony that appellant would conform within a prison environment. Point of error seven is overruled. In points of error one and two, appellant contends that his state and federal constitutional rights to a trial by jury include the right, on remand, to have the same jury determine guilt as well as punishment. He concedes that he is raising this issue for the first time on appeal, but contends that, because it is a systemic requirement, he may do so. See Marin v. State, 851 S.W.2d 275 (Tex.Crim.App. 1993). "A `systemic requirement'. . . is a law that a trial court has a duty to follow even if the parties wish otherwise." Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App. 2004). But there is no "law" that compels a retrial on guilt as well as punishment after a reversal for punishment error. The only law of which we are aware provides to the contrary. Art. 44.29(c); Ransom v. State, 920 S.W.2d 288, 297-98 (1994) (op. on reh'g); see also Clark v. State, 994 S.W.2d 166, 168 (Tex.Crim.App. 1999) (recognizing that "the law require[s] us to remand the case for a hearing on punishment only" after reversing for punishment error under 44.29(c)). Appellant argues that the constitutional right to a trial by jury also supports a right to have the same jury decide guilt and punishment, but he does not set out the logical progression that leads to that conclusion. He relies in part on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), although he again fails to demonstrate how those cases support his claim. Moreover, we have rejected a similar claim based on Apprendi. In Smith v. State, 74 S.W.3d 868, 872 (Tex.Crim.App. 2002), the defendant argued that the Court's reversal for only a new punishment hearing violated the Sixth Amendment and due process. He asserted that, because the definition of capital murder at that time included an element of deliberateness, the same jury should decide both guilt and the deliberateness special issue. Id. at 873. Smith relied on Apprendi for the proposition that a sentencing factor, such as deliberateness, was a fact finding that must be made by the same jury that determined guilt. We rejected that argument. [W]e see nothing in Apprendi that suggests that the same jury must consider the guilt-innocence and punishment phases where the trial court submits an issue of deliberateness, as the appellant argues. Apprendi requires only that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." As we pointed out above, the Texas scheme follows Apprendi's constitutional rule. We may reverse and remand any capital case for a punishment hearing alone before a new jury. Id. at 874 (citations omitted). There are no state statutory provisions requiring that the same jury decide the separate issues of guilt and punishment when the death penalty is sought, and we are aware of no authority construing the federal or state constitutions as imposing such requirement. Considering the dearth of any authority, constitutional or otherwise, that supports appellant's claim, we do not conclude that it is a systemic requirement. Also, appellant has procedurally defaulted these claims by raising them for the first time in this appeal. Points of error one and two are overruled. In point of error three, appellant claims that the trial court erred by proceeding to punishment on the special issues when the indictment did not allege the issues or any facts in support of those issues, in violation of his federal constitutional right to due process of law. Appellant contends that, under Apprendi, he was entitled to have the grand jury pass on the special punishment issues before the State is authorized to seek the death penalty. This Court has repeatedly rejected the argument that Apprendi requires the State to allege the special issues in the indictment. See, e.g., Renteria v. State, 206 S.W.3d 689, 709 (Tex.Crim.App. 2006) (citing Russeau v. State, 171 S.W.3d 871, 886 (Tex.Crim.App. 2005), cert. denied, 126 S.Ct. 2982 (2006), and Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App. 2003)). Point of error three is overruled. In point of error four, appellant asserts that the failure to allege the special punishment issues in the indictment violated his state constitutional right to indictment by a grand jury. He contends that the grand jury should be required to pass on the special issues before the State is authorized to seek the death penalty. Appellant points to language from King v. State, 473 S.W.2d 43, 45 (Tex.Crim.App. 1971), which quoted from Corpus Juris Secundum:
"At common law all offenses above the grade of misdemeanor must be prosecuted by indictment, for it was the policy of the common law that no man should be put on his trial for felony, for which the punishment was death, until the necessity therefor should first be determined by a grand jury on oath."(Emphasis added by appellant). Appellant's argument is based on the historic role of the grand jury to operate as a check on prosecutorial power. There is nothing in the language of the state constitution itself that requires the grand jury to pass on special punishment issues. Article I, section 10, pertaining to the rights of an accused in criminal cases, provides in part that the accused "shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof" and that "no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury[.]" Tex. Const. Art. I § 10; see also id. at Art. V § 12(b) (defining indictment). Although indictments serve, in part, to "provide the accused an impartial body which can act as a screen between the rights of the accused and the prosecuting power of the State," Teal v. State, 230 S.W.3d 172, 175 (Tex.Crim.App. 2007), this has never been interpreted to mean that the grand-jury screening function set out in the Texas Constitution pertains to capital-sentencing issues. The language from King quoted by appellant does not support appellant's argument. The defendant in King pled guilty to three non-capital felony offenses. King v. State, 473 S.W.2d at 44. In one of the cases, he waived the right to be charged by indictment. On appeal, he claimed that the right to an indictment could not be waived. In discussing the historical basis for indictments at English common law, the Court quoted from Corpus Juris Secundum (C.J.S.), where it is noted that "no man should be put on his trial for felony, for which the punishment was death, until the necessity therefor should first be determined by a grand jury on oath." Id. at 45. But the reference to punishment by death, when read in context, is not the focus of the discussion. The point of the discussion is that indictments have historically served as protection against arbitrary accusations by the government in serious criminal cases. Id. Moreover, the C.J.S. quote was dicta under the facts in King. We have repeatedly recognized prosecutorial discretion to seek the death penalty. See, e.g., Russeau, 171 S.W.3d at 887 (State's discretion to seek death penalty is not unconstitutional, citing Hankins v. State, 132 S.W.3d 380, 387 (Tex.Crim.App. 2004), and Ladd v. State, 3 S.W.3d 547, 574 (Tex.Crim.App. 1999)). The C.J.S. excerpt in King does not support any grant of authority under our state constitution that would compel a check on that discretion by the grand jury. Finally, in Studer v. State, 799 S.W.2d 263, 272 (Tex.Crim.App. 1990), this Court concluded that, per constitutional amendments adopted in 1985, the "requisites of an indictment stem from statutory law alone now." Articles 21.02 and 21.03 set forth the requisites for an indictment, and the Court has held that these provisions do not require the State to plead the punishment special issues in a capital case. Rosales v. State, 748 S.W.2d 451, 458 (Tex.Crim.App. 1987); Sharp v. State, 707 S.W.2d 611, 624 (Tex.Crim.App. 1986). Point of error four is overruled. In his fifth point of error, appellant claims that the trial court erred in overruling his motion for mistrial in response to the state's closing argument at punishment. Appellant complains of a statement made by the prosecutor during closing argument: "And, by the way, do you want to feed him and clothe him and pay his cable bills for the next three plus decades?" (Emphasis added.) The court sustained appellant's objection and instructed the jury to disregard. Appellant's motion for a mistrial was denied. Appellant claims that the State's argument referring to the public paying for his access to cable television was too prejudicial and inflammatory for the court's instruction to cure. Even when a prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error. See Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000); Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999) (holding prosecutor's statement during argument that co-defendant was "on death row," a fact not in evidence, was cured by prompt instruction to disregard). Assuming, without deciding, that the prosecutor's reference to cable television was outside the bounds of proper argument, the argument was not so extreme as to render ineffective an instruction to disregard. The State made a single and brief reference to cable television, the trial court sustained the objection, its instruction to disregard the comment was immediate, and the State did not repeat the reference. The trial court did not abuse its discretion in denying appellant's motion for a mistrial. Point of error five is overruled. In point of error six, appellant claims that the trial court erred in allowing testimony about the number and types of people who attended Hayslip's funeral. He contends that this testimony exceeded the scope of proper victim-impact evidence by encouraging a moral comparison between appellant and the victim. See Payne v. Tennessee, 501 U.S. 808, 823 (1991) (victim impact should not be offered to encourage comparative judgments); Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App. 1998) (when focus shifts from humanizing the victim and illustrating harm caused by defendant to measuring worth of victim compared to others, then state exceeds bounds of permissible testimony). Hayslip's brother, Michael Gene Donaghy, testified about her funeral.
Q. How many people showed up [at the funeral]?
A. Hundreds. There was a lot of people.
Q. Did you even realize she had that many friends or that many people who knew her?
A. I knew my sister touched a lot of lives and everybody loved her and she loved everybody. I didn't know she knew that many people.
Q. Who showed up at the funeral? Social friends? Clients? Mixture of both?
[DEFENSE COUNSEL]: I object to this. This goes beyond victim impact with this testimony.
THE COURT: That's overruled.
[DEFENSE COUNSEL]: Gets to the area of victim character evidence and we object to it.
THE COURT: Overruled. Go ahead.Appellant failed to object to the State's question about the number of people who attended the funeral, and any complaint as to that question was therefore procedurally defaulted. Although appellant argues that the trial court erred in allowing Donaghy "to testify to the . . . types of people who attended the . . . funeral," no testimony was actually elicited. The question was asked, and the trial court overruled appellant's objection, but the prosecutor never pursued an answer. Even assuming that the question was improper, appellant was not harmed by the unanswered question. The question by itself did not assume, suggest, or interject any facts about who actually attended the service or leave the jury with a particular impression about the types of persons who attended. See Brown v. State, 692 S.W.2d 497, 501 (Tex.Crim.App. 1985) (noting that mere asking of improper question is not reversible error unless it results in obvious harm to accused); cf. Turner v. State, 719 S.W.2d 190, 194 (Tex.Crim.App. 1986) (when witness does not have opportunity to respond to improper question, instruction to disregard will render error harmless). Point of error six is overruled. In his eighth point of error, appellant claims that the method of execution by lethal injection is cruel and unusual punishment, in violation of his federal constitutional rights. Appellant does not allege or explain in what way the method of execution by lethal injection is cruel and unusual, and he did not raise the issue at trial. We have previously concluded that we cannot address this type of claim when the record, as here, is not sufficiently developed at trial. Bible v. State, 162 S.W.3d 234, 250 (Tex.Crim.App. 2005). Moreover, the claim is not ripe for review on direct appeal. See Colburn v. State, 966 S.W.2d 511, 513 (Tex.Crim.App. 1998) (because defendant's execution was not imminent, his claim that death sentence was unconstitutional due to his mental illness was not ripe for review). Point of error eight is overruled. The judgment of the trial court is affirmed.
Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.