Heiselbetz v. State

MALONEY, Judge,

concurring.

In his thirty-second point of error appellant claims the evidence is insufficient to support a finding that there is a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. I agree that the evidence is sufficient to support an affirmative finding on the second issue, but write separately to emphasize exactly what evidence supports that finding and also to caution that we should not lose sight on the confines of Fur-man and Jurek when analyzing sufficiency of the evidence on punishment issues.

I.

Athough the majority takes pains to avoid saying so, an affirmative finding on the second issue rests virtually on the fact that the offense was a double murder of mother and child by strangulation. The evidence apart from the facts of the offense itself is largely insignificant.

The State offered the following evidence of extraneous unadjudicated misconduct: 1

*514 1. A 72 year old woman testified that approximately two and one half years prior to the trial she had hired appellant to trim her trees, a dispute arose from problems associated with the job and she hired someone else. She said that upon learning of the new hire, appellant became angry, chased her •with a hammer he was about to use to fix her roof and threatened to kill her.

2. Appellant’s ex-wife testified that she was married to appellant from 1970-77, but had not been in contact with him since then. She testified that he beat their two children with a belt and that one time she came home and found the older child with bruises on his head. She also testified that the children have required professional psychiatric help and that one tried to commit suicide. Appellant no longer has parental rights over the children and they have been adopted by her current husband. She also testified that while she and appellant were separated before their divorce, he broke into her house and raped her.

3. Appellant’s former sister-in-law testified that she once saw appellant beat his two children with the buckle end of a leather belt.

The misconduct involving appellant’s ex-wife and children from his first marriage occurred fifteen to twenty years prior to the trial of this case. The passage of time since these events allegedly took place and the fact that none of them resulted in criminal charges weakens their evidentiary value. There is a noticeable dearth of evidence of violent conduct by appellant during a thirteen year period, from the alleged incidents with his ex-wife and children until the alleged incident involving the seventy-two year old woman two-and-one-half years prior to the instant offense.

The evidence of lack of remorse consists solely of appellant’s taking of the hamburger meat and tomato sauce. The testimony of one police officer that appellant’s reputation was bad is hardly overwhelming.

Apart from evidence of misconduct that occurred nearly twenty years ago and a single recent account of verbal threats arising from a dispute related to a job, we are left with a defendant who has never been charged with a crime, and a motiveless, 2 non-premeditated killing of two victims, the details of which are virtually unknown. What the majority is unwilling to make clear in its opinion is that the facts of this case alone— the strangulation of a mother and child— support an affirmative finding by a rational trier of fact that appellant would constitute a continuing threat to society. The strangulation of a mother and child is so shockingly disturbing as to alone support a finding by a rational trier of fact that the individual responsible is depraved to the point of constituting a continuing threat to society. The majority’s emphasis on other evidence in support of the second issue is disingenuous. As mentioned previously, the misconduct involving appellant’s wife and children from his first marriage occurred fifteen to twenty years prior to the trial of this case. Thirteen years passed between the time of those alleged incidents and the alleged incident involving the seventy-two year old woman. None of this evidence resulted in criminal prosecution.

*515 II.

In reviewing sufficiency of the evidence on punishment issues in capital cases, this Court must remain mindful of Furman v. Georgia, 408 U.S. 238, 239-40 , 92 S.Ct. 2726, 2727 , 33 L.Ed.2d 346 (1972) and its aftermath. In Furman , in a per curiam opinion, the Supreme Court struck down the death penalty sentencing schemes in Texas and Georgia, concluding that “the imposition and carrying out” of those schemes constituted cruel and unusual punishment. In four separate concurring opinions, Justices Douglas, Brennan, Stewart and Marshall all discussed, to varying degrees, the arbitrary manner in which the death sentence was imposed under systems in which juries acted with virtually unfettered discretion. 3 Thereafter, the Texas death penalty scheme was amended by the Legislature to more narrowly identify the offenses implicating the death penalty and focus the jury’s decisionmaking process at sentencing. The Supreme Court upheld the constitutionality of the new scheme primarily for three reasons:

By narrowing its definition of capital murder, Texas has essentially said that there must be at least one statutory aggravating circumstance in a first degree murder case before a death sentence can even be considered. By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function. By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution.

Jurek v. Texas, 428 U.S. 262, 276 , 96 S.Ct. 2950, 2957 , 49 L.Ed.2d 929 (1976).

Accordingly, not every capital murder calls for the imposition of the death penalty; it may be imposed only upon a narrow factfind-ing by the jury who answers yes to two or three specific questions. This Court emphasized in Keeton v. State, 724 S.W.2d 58, 64 (Tex.Crim.App.1987),

... we are bound by the law to make certain that the death penalty is not “wantonly or freakishly” imposed, and that the purposes of the jury’s consideration of the [ ] special issues ... are accomplished. Every murder committed in the course of robbery is in some way cold-blooded and senseless. Each such murder does not, however, merit the death penalty, our most final punishment.

It is against this historical backdrop that we should review sufficiency of the evidence on the special issues, keeping in mind that the Legislature has narrowly defined the circumstances under which a defendant is death-worthy. For this reason, a defendant is not automatically sentenced to death upon a conviction of capital murder. The State is still required to prove the special issues beyond a reasonable doubt, separate and in addition to proving the defendant’s guilt.

I pause to revisit Furman and Jurek in this case because the facts which support an affirmative finding on the first and second issues here are intricately bound with the simple fact that this was a double murder case. We would surely run afoul of Furman and Jurek to suggest that every double murder under Tex.Penal Code Ann. § 19.03(a)(6)(A) necessarily warrants an affirmative finding on the two special issues. I emphasize, however, the existence of evidence in this case which renders appellant *516 deathworthy beyond the fact that he killed two persons in a single criminal transaction; specifically, the manner of death by strangulation, the proof that appellant killed by touching them and not letting go until each was dead. Considering that one of the deceased was a child is even more telling. Based upon these facts, I agree that a rational jury could find that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society.

With these comments, emphasizing that this is one of those close cases in which we should be especially cognizant of the confines of Furman and Jurek , I join the opinion of the majority.

.Notably, the State offered no evidence of prior conduct that resulted in criminal prosecution or psychiatric testimony that appellant would be a continuing threat to society.

Appellant offered the following evidence on his behalf at punishment:

1. Appellant’s father testified that appellant had a good relationship with the children from his first marriage, as well as with the children from his current marriage. He testified that he had never seen appellant "as much as spank” his children. He further testified that appellant’s divorce from his first wife was difficult. He stated that during their separation and for two years following the divorce appellant exercised his visitation rights up until one day when he went to pick his children up and was informed by the new occupants of the house that his ex-wife and children had moved away. He also testified that since sustaining a head injury in a car accident in 1975, appellant has had spells where he "couldn’t cope” and became easily frustrated. He testified that appellant would often withdraw and need to be left alone in order to "cope.” He also testified that he had never seen appellant become violent and that appellant had a good reputation for being peaceable and law abiding.

2. Appellant’s current wife testified to appellant’s peaceable nature and good relationship with her and their children.

3. Appellant’s 11 year old daughter testified that appellant was a good father, that he had never beaten or abused her or her siblings and that she loved him.

4. A former employer testified that appellant was a good worker and had never shown any anger or violence at work. A business associate testified that in his dealings with appellant, appellant had never displayed any violence or anger.

5. Four dispatcher/jailers testified that appellant had been a model prisoner.

6. Appellant’s sister testified that she and appellant were sexually abused as children by their older sister.

*514 7. A neuropsychologist who examined appellant testified that appellant had mild to moderate frontal lobe pathology, probably due to the brain injury sustained in 1975. He testified that this impairment affects mood and abstract thinking. He also called the condition "organic mood disorder or organic affective disorder.” He testified that such impairment might tend to degenerate or worsen with age. He also testified that such impairment, being organic in nature, could be treated with medication.

In addition, evidence which could be viewed as mitigating or aggravating included the testimony of the State's psychiatrist that a head injury can in some cases result in behavioral changes such that the injured person might be more irritable or short tempered. The State’s psychiatrist also testified that if appellant had suffered amnesia, it would be psychogenic amnesia rather than organic. He testified that, given his limited examination of appellant, he was unable to conclusively rule out that appellant had suffered from psychogenic amnesia.

. The majority’s suggestion that appellant was in the victims’ house on the morning of the offense and was surprised by their return has no basis in evidence.

. Justice Douglas emphasized that it is indeed cruel and unusual punishment to apply the death penalty arbitrarily or discriminatorily. He further reasoned that a system which "leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned[,]” enables the death penalty to be selectively applied, contrary to our notions of equal protection of the law and to the cruel and unusual punishment clause of the eighth amendment. Id. at 253, 92 S.Ct. at 2733 (Douglas, J., concurring). Justice Brennan recognized that "rather than resulting in the selection of ‘extreme’ cases” for the death penalty, the existing schemes fostered an arbitrary imposition, which he viewed as "wanton and freakish.” Id. at 294-95, 310 , 92 S.Ct. at 2754-55, 2762 (Brennan, J., concurring).