# Corwin v. State

> Court of Criminal Appeals of Texas · September 15, 1993 · 870 S.W.2d 23

URL: https://www.frixlaw.com/law-library/cases/9640629

## Case

- **Full name:** Daniel Lee CORWIN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 15, 1993
- **Citations:** 870 S.W.2d 23; 1993 Tex. Crim. App. LEXIS 143; 1993 WL 346483
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Clinton, Baird, Miller, Maloney
- **Cited by:** 75 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9640629

## How later opinions describe it (automated extraction)

- recognizing that defendant's drawing of "a large green monster holding a bloody-bladed axe in one hand and the scalp of a woman in the other with a body wrapped in the tail" had "an inferential bearing on his character for violence, which relates in turn to the question of fut…
- concluding that the jury could infer facts about the defendant’s character for violence from his drawing of a large green monster holding a bloody axe and a woman’s scalp
- recognizing that defendant’s drawing had “an inferential bearing 7 on his character for violence, which relates in turn to the question of future dangerousness”
- recognizing that defendant’s drawing had “an inferential bearing on his character for violence, which relates in turn to the question of future dangerousness”
- holding instruction to disregard cured argument inviting jury to speculate as to unproven past misconduct involving additional possible murders

## Opinion text

BAIRD, Judge,
concurring.
I write separately to further address appellant’s fifth point of error.
I.
The majority states that appellant does not “specify in what respect the drawing is unreliable evidence as it bears on this issue.” Majority op. pg. 35. I disagree. Appellant specifically contends the drawing lacks the standard of reliability required by the Eighth Amendment in capital cases. Appellant’s brief pgs. 41-42. In support of that proposition appellant relies on Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), and several other cases from the United States Supreme Court. Appellant’s brief pgs. 44-45.
In Booth , the United States Supreme Court considered whether the admission of a victim impact statement at the punishment phase of a capital murder trial violated the Eighth Amendment. Id., 482 U.S. at 501-502 , 107 S.Ct. at 2532 . The Court stated:
... [Wjhile this Court has never said that the defendant’s record, characteristics, and the circumstances of the crime are the only permissible sentencing considerations, a state statute that requires consideration of other factors must be scrutinized to ensure that the evidence has some bearing on the defendant’s “personal responsibility and moral guilt.” To do otherwise would create the risk that a death sentence will be based on considerations that are “constitutionally impermissible or totally irrelevant to the sentencing process.”
Id., 482 U.S. at 502 , 107 S.Ct. at 2532-2533 (citations omitted; emphasis in original). The Court found victim impact statements contained information which was unknown to the defendant; irrelevant to his decision to commit the offense; and, difficult to rebut. The statements could divert the jury’s attention away from its “... constitutionally required task — determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.” Id., 482 U.S. at 507 , 107 S.Ct. at 2535 . The Court found that the conclusions the jury could draw “from the evidence clearly is inconsistent with the reasoned decision making we require in capital cases,” and held the admission of such evidence violated the Eighth Amendment. Id., 482 U.S. at 508-509 , 107 S.Ct. at 2536 .
As the majority notes, the Supreme Court overruled Booth in Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), holding that the exclusion of victim impact statements “deprive[d] the State of the full moral force of its evidence and ... prevente[d] the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.” Id., 501 U.S. at -, 111 S.Ct. at 2608 . The Court noted that “the assessment of harm caused by the defendant” has historically been an appropriate consideration in the assessment of punishment and that, although the capital defendant is entitled to *38 individualized consideration, such consideration is not “wholly apart from the crime which he ha[s] committed.” Id., 501 U.S. at -, 111 S.Ct. at 2605-2607 .
The Payne Court, however, did not alter the requirement that capital punishment evidence be reliable. The Supreme Court has stated:
... Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976). 1 The Eighth Amendment requires that the jury “have adequate guidance to enable it to perform its sentencing function” to avoid the arbitrary infliction of the death penalty. Jurek v. Texas, 428 U.S. 262, 276 , 96 S.Ct. 2950, 2958 , 49 L.Ed.2d 929 (1976). See also, Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas).
II.
In the instant case the State admitted a six foot drawing by appellant and later argued the drawing was a “self portrait.” {See, appendix.) The drawing was completed in 1981 or 1982, six or seven years before the commission of the instant offenses, at the request of Mark LeNorman, an instructor at the Texas Department of Corrections Windham School System. Although LeNorman did not “suggest what appellant should draw,” Majority opinion pg. 35, the State concedes appellant was asked to draw “... something for Halloween.” State’s Brief pg. 33. The State offered no testimony, expert or otherwise, interpreting the drawing. Nevertheless, the State argued:
... Presented the, what I call the self portrait. A real indication ... I submit to you this shows what [appellant] comes up when he’s asked to create something on his own devices. Not following or copying some model. He comes up with a monster.
That creature lives within [appellant]. We don’t have any way available to us to exorcise that demon from within [appellant]. But we certainly have a way, and you have a way, by answering yes and yes to those special issues of exorcising [appellant] from our society. I submit that’s what you should do.
III.
The majority holds, without citation to authority, that “[a]ppellant’s drawing has an inferential bearing on his character for violence, which relates in turn to the question of future dangerousness.” Majority opinion pg. 35. I disagree. The only evidence presented regarding this drawing was that it was intended to be a Halloween decoration. There is no showing that the drawing is reliable punishment evidence relative to the second punishment issue. See, Tex.Code Crim.Proc.Ann. art. 37.071(b)(2). Pure speculation, devoid of any factual basis, does not provide the reliability required under the Eighth Amendment. See, Woodson, 428 U.S. at 305 , 96 S.Ct. at 2991 . Further, a defendant’s drawings have not historically been an appropriate consideration in the assessment of punishment. Compare Payne, 501 U.S. at -, 111 S.Ct. at 2608 .
In light of the foregoing authority, it is clear that the evidence presented at the punishment phase of a capital trial must be reliable. Since there was no showing that the drawing, drawn at the request of a third party six years prior to the date of the instant offenses, was reliable evidence of appellant’s “personal responsibility and moral guilt,” I believe the trial judge erred in admitting the drawing. Booth, 482 U.S. at 502 , 107 S.Ct. at 2533 .
IV.
The question becomes whether the admission of the drawing contributed to appellant’s-punishment. Tex.R.App.P. 81(b)(2). The record demonstrates that appellant murdered three separate women by stabbing them; two of the women were found nude or semi-nude. Further, the State proved three *39 other instances where appellant physically and sexually assaulted women at knife-point. Based upon this evidence, as well as the statements given by appellant, I find beyond a reasonable doubt that the error in admitting the drawing did not contribute to appellant’s punishment. With these comments, I concur in the disposition of appellant’s fifth point of error.
I also concur only in the disposition of Part II, B, ii of the majority opinion and otherwise join that opinion.
MALONEY, J., joins this opinion.
*40 [[Image here]]
. All emphasis is supplied unless otherwise indicated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9640629. Public record. Not legal advice.