Rachal v. State

BAIRD, Judge,

opinion concurring in part and dissenting in part.

I agree that no error at the guilt/innocence phase of appellant’s trial was sufficient to warrant reversal of his conviction. Therefore, I join part II. of Judge Clinton’s concurring opinion and join only that portion of our judgment which affirms appellant’s conviction. However, I dissent to the resolution of appellant’s first point of error which relates to the punishment phase of appellant’s trial.

Appellant’s first point of error raises the following question: “Can lawful conduct ever be relevant to establish a probability the defendant would commit criminal acts of violence in the future?” For the following reasons, I believe the question must be answered in the negative.

I.

Appellant contends the trial judge erred at the punishment phase of trial in admitting evidence of an alleged offense for which appellant had been no-billed. The record establishes that appellant, in order to protect his brother, fatally shot an individual. The incident was referred to a Harris County Grand Jury and appellant was no-billed. The assistant district attorney who presented the case to the grand jury testified, in the instant case, as follows:

... [The victim] either had a knife or appeared to be reaching in his pants for a knife and [appellant], pushed [appellant’s brother] out of the way and shot [the victim].... I told [the Grand Jury] what the circumstances of the case were and ... I said they could conclude that [appellant] was in fear of his brother’s life.... I believed that the evidence was such that a fair jury would probably have concluded that it was self-defense and I believed that the Grand Jury’s decision to conclude that it was self-defense was justified. 1

This evidence was offered for the express purpose of proving future dangerousness. 2

II.

Upon conclusion of the presentation of the evidence at the punishment phase of a capital murder trial, the trial judge submits to the jury the statutory punishment issues of Tex. Code Crim.Proc.Ann. art. 37.071. In the instant case, the relevant punishment issue concerns future dangerousness and asks:

whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;

Before the jury can affirmatively answer this issue, the State must prove beyond a reasonable doubt a probability exists the defendant would commit criminal acts of violence.

To resolve this issue, our law provides for the admission of evidence the trial judge deems relevant to sentence. Tex.Code Crim. ProcAnn. art. 37.071. 3 Tex.R.Crim.Evid. 401 defines relevant evidence as:

*826 “Relevant evidence” means evidence having 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.Crim.Evid. 402 provides that all relevant evidence is admissible and evidence that is not relevant is not admissible.

In the instant case, the trial judge admitted evidence that appellant caused the death of an individual. Our penal code provides that a person is justified in using deadly force against another to protect a third person. Tex.Penal Code Ann. § 9.3B. The State’s witness, an assistant district attorney who presented the case to the Grand Jury, conceded appellant’s conduct was justified under § 9.33. Justifiable conduct is conduct that is sanctioned by law. Black’s Law Dictionary 865 (6th ed. 1990). Consequently, the trial judge found that appellant’s lawful conduct was relevant to resolve the issue of whether there was a probability that appellant would commit criminal acts of violence. I believe this was error.

Justifiable homicide is not unlawful. 4 Therefore, it cannot have any tendency to establish the probability that a defendant would commit criminal acts of violence. Consequently, I would hold that justifiable conduct is only relevant to the extent it mitigates against the imposition of the death penalty. Art. 37.071, § 2(a). Such evidence is not admissible to establish the probability that a defendant would commit criminal acts of violence.

For these reasons, I would sustain appellant’s first point of error and remand the case to the trial court for a new punishment hearing. Tex.Code Crim.ProcAnn. art. 44.29(c). Because the majority does not, I respectfully dissent.

. The majority argues the Grand Jury had no authority to determine whether the homicide was justifiable in returning a no-bill. Ante at 807. The majority cites no authority for that proposition and the uncontroverted evidence presented by the State, shows the Grand Jury made that determination.

. In support of its admissibility, the State argued: THE STATE: Judge, all we propose for this witness to show is that the defendant was charged in the homicide of [the victim]. We think that is relevant under 37.071. We can show arrest. We can show relevant information in a capital trial to show the defendant’s propensity for dangerousness.

.Sec. 2(a) provides in pertinent part:

... evidence may be presented by the state and the defendant or the defendant’s counsel as to any matter that the court deems relevant to sentence, including evidence of the defendant’s background or character of the circumstances of the *826 offense that mitigates against the imposition of the death penalty. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas....

. Tex.Penal Code Ann. § 1.07(a)(48) provides:

“Unlawful” means criminal or tortious or both and includes what would be criminal or tortious but for a defense amounting to justification or privilege.