holding that record did not support a showing that appellant requested an attorney even though a t some point during the interrogation appellant asked detective “what a lawyer would tell him to do,” and detective informed appellant “in no uncertain terms that a lawyer would tell him to keep his mouth shut and not to talk to the police at all”
How later courts described this case
- holding that record did not support a showing that appellant requested an attorney even though a t some point during the interrogation appellant asked detective “what a lawyer would tell him to do,” and detective informed appellant “in no uncertain terms that a lawyer would tell him to keep his mouth shut and not to talk to the police at all”
- stating in a legal-sufficiency analysis of future-dangerousness special issue that mere fact that a capital offense is committed “is insufficient in itself to prove future dangerousness” even though “the circumstances of the offense alone may be sufficient to sustain the jury’s affirmative answer” to this special issue
- holding that a victim’s appointment book listing defendant’s name and a patient application listing a similar name were not hearsay because they were not offered for the truth of the matter asserted but were used to explain how the defendant became a 6 suspect
- concluding that the trial court abused its discretion in failing to permit appellant to ask a prospective juror whether he could adhere to the definition of reasonable doubt that was provided under the law at the time, but that the error was harmless
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
In his first two points of error appellant argues that the trial court erred in failing to grant his motion to quash the indictment. He claims on appeal that the indictment is defective in that it does not allege the culpable mental state of intentional or knowing vis-a-vis the second alleged murder victim. In his motion to quash appellant complained that the indictment was deficient in that it failed to allege “all the essential acts and omissions by the Defendant necessary to constitute a violation of Section 19.02 [sic?] of the Penal Code of the State of Texas.” He nowhere complained, however, of a failure to allege every requisite culpable mental state. He has therefore forfeited that particular complaint on appeal. Article 1.14(b), Y.A.C.C.P.; Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990). The Court should not reach the merits of appellant’s contention at ah.
Moreover, in treating the merits, the Court errs. The Court considers it a foregone conclusion that the second murder under V.T.C.A.Penal Code, § 19.03(a)(6) is nothing but an aggravating feature. It is true, as the State notes in its brief, that in another context this Court has indeed designated the second murder as “merely the aggravating circumstance that renders ‘capital’ the murder of the person” first aUeged in the indictment. Narvaiz v. State, 840 S.W.2d 415, at 433 (Tex.Cr.App.1992). It seems to me this proposition requires a more searching scrutiny than the Court has afforded it so far. Failing that, the Court here falls back on a host of cases holding that it is not necessary to allege the constituent elements of the aggravating feature of a capital murder to allege a complete offense. Maj. op. at 338. But the Court has also held, in essence, that if the State chooses to allege an aggravating feature not by simply naming it in the indictment, but by alleging the constituent elements thereof, it must allege all of the constituent elements. See Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (burglary indictment which did not allege entry with intent to commit “theft,” instead alleging entry with intent to commit the requisite elements of theft, but which left out one element thereof, did not allege an offense, and therefore could not support conviction for burglary). That the indictment here later alludes to “said murders” does not save it, Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977) notwithstanding, because the indictment has only alleged the constituent elements of one murder up to that point, and hence has not theretofore “said murders.” 1 Thus, in my view, had appellant raised his contention timely in the trial court, it would have been a valid complaint.
In any event, appellant did adequately call attention to the defect in the jury charge, viz: failure of the application paragraph to require the jury to find that appellant caused the second victim’s death “intentionally or knowingly.” I cannot concur, therefore, in the Court’s disposition of his third point of eiTor on the basis of procedural default, as I can its disposition of appellant’s first two points of error. Reaching the merits of the third point of error, as it should, the Court fails to recognize it is any error at all to fail to require in the application paragraph that the jury find an elemental culpable mental state before it is authorized to convict. In this I cannot join.
Simply put, the application paragraph here did not require the jury to find every requisite element of the offense of capital murder under § 19.03(a)(6)(A) as a predicate to conviction. The Court holds that it need not, because the allusion later in the application paragraph to “both of said murders” was enough to refer the jury back to the abstract definition of murder appearing earlier in the charge, whereby the jury would have recognized the need to find that the second murder was committed intentionally or knowingly before it could convict. This observation, in combination with compelling evidence appellant did indeed intentionally or knowingly commit both murders, might be sufficient to establish appellant did not suffer egregious *363 harm from the defect in the application paragraph. Thus, I might be persuaded there was no fundamental error in the jury charge, as defined by Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (Opinion on State’s motion for rehearing). But that is not the standard to be used here, since appellant objected to the jury charge in this cause. Instead the question is simply whether “some harm” resulted from the error. Arline v. State, 721 S.W.2d 348 (Tex.Cr.App.1986). The application paragraph required the jury to find appellant caused the death of the first victim “intentionally or knowingly.” That requirement was conspicuously absent as pertains to the second victim. That the application paragraph later alluded to “both of said murders,” even if that were sufficient to direct the jurors to the abstract definition of murder found earlier in the jury charge, would at best serve to confuse, rather than to clarify. Given this charge, there is a genuine possibility the jury did not feel obliged to find the second murder was committed intentionally or knowingly — an element of the offense — before it was authorized to convict appellant of capital murder. Surely that is enough to constitute “some harm.” For, however compelling the evidence of intent may have been, both the Sixth Amendment to the United States Constitution and Article 1.14(a), V.A.C.C.P., guarantee appellant a jury finding on that issue before he can be lawfully convicted of capital murder.
For this reason the judgment of the trial court should be reversed and the cause remanded for a new trial. Because the Court does not, I dissent. I write further to address what I consider to be deficiencies in the Court’s treatment of several other points of error.
In his sixth point of error appellant complains that he was deprived of equal protection of the laws under the Fifth Amendment to the United States Constitution when the trial court declined to submit the special issues at the punishment phase of trial that are contained in the 1991 legislative amendment to Article 37.071. Applying the pre-amendment version of Article 37.071, appellant contends, denied him the benefit of the mitigation instruction that was added to the statute by Acts 1991, ch. 838, § 1, p. 2899, eff. Sept. 1,1991. However, Section 5 of that same amendment expressly provided that it “applies only to an offense that is committed on or after September 1, 1991.” Thus, although appellant’s trial commenced in October of 1991, after the effective date of the amendment, because the offense occurred in September of 1990, by its express terms the amendment does not apply to him. 2 Moreover, the amendment does not apply to any capital murderer who committed his offense before September 1, 1991. Every capital murderer thus situated will have special issues submitted at the punishment phase of trial according to the provisions of Article 37.071 as it read prior to the 1991 amendment. Because all similarly situated capital murder defendants are treated the same, there simply is no colorable equal protection claim. Nothing more need be said. The Court’s discussion of “fundamental rights” and “suspect classifications” is confusing, and, anyway, superfluous.
The Court disposes of appellant’s tenth and eleventh points of error by agreeing with the State’s contention that the appointment book notation and patient application form were not admitted for the truth of the matters asserted therein, but only to explain to the jury “how the officers came to suspect [ajppellant and .seek him out.” The State argues that such items, “offered for the purpose of showing what was said therein, rather than for the truth of the matter asserted, *364 do not constitute hearsay.” 3 The Court uncritically accepts this proposition, parrots a number of cases in support thereof, and is done with it. Maj. op. at 347.
But that is not the end of the matter. The appropriate question to ask next, of course, is whether the substance of the out of court declaration — “what was said” — has any relevance at all apart from the truth of the matter asserted. How appellant came to be a suspect in the case does not seem to me to have “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.” Tex.R.Cr.Evid., Rule 401. In any event, the State, as proponent of the evidence, did not articulate this or any other non-truth-of-the-matter-asserted basis for admitting the evidence at trial.
This suggests that in all likelihood the State had no other purpose in mind. The “matter asserted” in the appointment book is that somebody with a name very similar to appellant’s was scheduled to be at the scene of the killings at the very time they occurred. “[T]he probative value” of that statement “as offered flows from declarant’s belief as to the matter.” Tex.R.Cr.Evid., Rule 801(c). Likewise, the “matter ... implied” by the patient application form is that somebody with appellant’s name actually showed up at the appointed time; and one would assume that the value of this statement “as offered” also “flows from the declarant’s belief’ that that was indeed his name. Id. These statements have no relevance that I can see apart from these express or implied matters asserted. Obviously the State hoped the jury would infer from these writings that appellant was at the scene at the time of the killings. Because that is the most obvious probative value the appointment book notation and patient application form have — indeed, the only probative value I can see — appellant’s hearsay objection should have been sustained.
Having already concluded the trial court reversibly erred in this cause, I need not decide whether overruling appellant’s hearsay objection was harmless beyond a reasonable doubt under Tex.R.App.Pro., Rule 81(b)(2).
I- respectfully dissent.
. All emphasis added.
. Were appellant to be tried for the first time for this offense today, he would be entitled to the mitigation instruction he sought, but only by virtue of the recent promulgation of Article 37.0711, V.A.C.C.P. This new statute was added by Acts 1993, ch. 781, § 2, pp. 3060-3061, eff. Aug. 30, 1993. By its express terms the new statute is retroactive; that is, it expressly applies to offenses committed before September 1, 1991. Nevertheless, in the two years between September 1, 1991 and September 1, 1993, trial of every capital offense that occurred prior to September 1, 1991 was to be conducted under the provisions of Article 37.071 as it read when the offense was committed. Appellant does not here argue (nor could he have argued, as of the date his appellate brief was filed) that the 1993 amendment somehow retroactively denied him equal protection of law.
. Had the State proffered these items as business records, it would not now have to argue that they were admissible for reasons other than the truth of the matters asserted therein, since under Tex. R.Cr.Evid., Rule 803(6), they would have been admissible for that purpose. However, the State made no such proffer.