McGinn v. State

MANSFIELD, Judge,

concurring.

I join the opinion of the Court except as to point of error number one. I can only concur in the disposition of that point of error.

In his first point of error, appellant contends the jury’s affirmative finding as to the future dangerousness special issue was against the great weight of the evidence and manifestly unjust. In effect, appellant contends we should apply the sufficiency review standard to the future dangerousness special issue recently made applicable to claims of factual insufficiency in noncapital cases by our holding in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). I believe that appellant’s contention is meritorious as to the applicable standard of review.

For some time, we have effectively conducted a factual sufficiency review in capital cases where an appellant has averred the evidence was insufficient to support a jury finding that he will be a future danger, as that term is defined in Texas Code of Criminal Procedure, Article 37.071 § 2(b)(1), i.e., there is a probability he would commit criminal acts of violence that would constitute a continuing threat to society. This factual sufficiency review was set forth by this Court in Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987). In deciding whether there was sufficient evidence to support a jury’s finding that a defendant will constitute a continuing threat of violence to society, we held:

The jury is permitted to consider many factors when determining whether the defendant will pose a continuing threat of violence to society. These factors include, but are not limited to:

(1) the circumstances of the capital offense, including the defendant’s state of mind and whether he or she was working alone or with other parties;

*172 (2) the calculated nature of the defendant’s acts;

(3) the forethought and deliberateness exhibited by the crime’s execution;

(4) the existence of a prior criminal record, and the severity of the prior crimes;

(5) the defendant’s age and personal circumstances at the time of the offense;

(6) whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

(7) psychiatric evidence; and

(8) character evidence.

Keeton, supra, at 61 . See also Broussard v. State, 910 S.W.2d 952, 955 (Tex.Crim.App.1995); Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Crim.App.1995); Vuong v. State, 830 S.W.2d 929, 935 (Tex.Crim.App.), cert. denied, 506 U.S. 997 , 113 S.Ct. 595 , 121 L.Ed.2d 533 (1992). No one factor is disposi-tive and the jury’s affirmative finding may withstand a sufficiency challenge even if there is a lack of evidence relating to one or more of these eight factors. Dinkins, supra, at 358 ; Broussard, supra, at 955 . At the penalty stage, the jury may consider all of the evidence adduced at the guilt stage. Keeton, supra, at 61 .

In Clewis , we held:

In conducting a factual sufficiency review, the court of appeals views all the evidence without the prism of “in the light most favorable to the prosecution” ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Clewis, supra, at 134 .

The evidence supporting the jury’s affirmative answer as to the future dangerousness special issue is compelling. First, appellant had a substantial past criminal history, including a prior conviction for a kidnapping/beating in 1987. Testimony was introduced of a violent assault and rape in 1985 committed by appellant, a repeated sexual assault at knifepoint committed by appellant in 1986 and a 1987 molestation by appellant of his four-year-old daughter, Latasha, which resulted in her hospitalization for five days. There was testimony from Latasha’s mother that appellant threatened to kill her with a stick. Appellant’s history supports a rational finding he would likely commit violent acts of a sexual nature in the future.

The circumstances of the offense support the jury’s finding as to the future dangerousness special issue. Evidence adduced at trial showed appellant while alone in his car with his twelve-year-old stepdaughter, got her drunk, had sex with her, and beat her head in with multiple blows from an axe. He then secreted her body in a ditch. This evidence clearly shows appellant acted by himself, with forethought and deliberateness, and with calculation (there was testimony he attempted to eliminate or hide evidence of his commission of the offense). There was no evidence he was under duress or domination of another, or that he was acting with other parties. One psychiatrist, Dr. Coons, testified it was his opinion appellant would not likely be a future danger within the structured environment of the penitentiary. A second psychiatrist, Dr. Scott, testified it was his opinion there was a substantial, considerable risk appellant would commit future acts of violence. Clearly, using the factors set forth in Keeton and the other cases cited above, the evidence is more than sufficient to support the jury’s affirmative finding as to the future dangerousness special issue.

Since we function, in effect, as a court of appeals with respect to direct appeals, it is my opinion Clewis is the applicable standard of review that we must apply to factual sufficiency claims as to the guilt/innocence phase of a capital trial. Similarly, it is my opinion — since we already effectively perform a factual sufficiency review on the future dangerousness special issue — we should apply the Clewis standard. 1 The factors set forth in Keeton provide a means by which the Clewis standard of review can be applied to a claim the evidence is factually insufficient to *173 support an affirmative answer as to the future dangerousness special issue.

The same safeguards we announced in Cle-wis so as to prevent courts of appeals from merely substituting their judgment for that of the jury when exercising their fact jurisdiction are equally applicable to our exercise of our fact jurisdiction when reviewing the jury’s affirmative answer as to the future dangerousness special issue.

“In oi’der that this court may in the future determine if a correct standard of review of factual insufficiency points has been utilized, courts of appeals, when reversing on insufficiency grounds, should in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient ... as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Further, those courts, in their opinions should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict, (citations omitted) We see no reasons why these safeguards, which we held adequate in a factual sufficiency review of an affirmative defense (citation omitted), are not also adequate in a factual sufficiency review of the elements of the offense. Thus, these safeguards help ensure that the fact-finder is given the appropriate deference and that the defendant’s right to trial by jury remains inviolate.”

Clewis, supra, at 136-137 .

Applying Clewis ’ standard of review to the present case, and guided by the factors set forth in Keeton , the evidence is factually sufficient to support the jury’s finding that there is a probability appellant will commit future acts of criminal violence. This evidence includes the circumstances of the offense itself, psychiatric testimony, and appellant’s history of committing criminal violent acts. We will set aside the jury’s affirmative answer as to the future dangerousness special issue only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Because the jury’s affirmative answer as to this special issue in the present case is supported by a substantial quantity of evidence, it is not clearly wrong and unjust and, under Clewis , should not be set aside.

I join the opinion of the Court, but concur as to its disposition of appellant’s first point of error.

WOMACK, J., joins.

. I agree that Clewis does not apply to the mitigation special issue which, by its very nature, cannot logically be the subject of a factual sufficiency review. See McFarland v. State, 928 S.W.2d 482, 499 (Tex.Crim.App.1996).