stating that a murder defendant is not entitled to an instruction on the lesser-included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide and since there was no evidence from which a rational jury could conclude that appellant did other than cause the death of the victim, the only lesser-included offense that was raised by the evidence of recklessness was manslaughter, not aggravated assault
How later courts described this case
- stating that a murder defendant is not entitled to an instruction on the lesser-included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide and since there was no evidence from which a rational jury could conclude that appellant did other than cause the death of the victim, the only lesser-included offense that was raised by the evidence of recklessness was manslaughter, not aggravated assault
- holding that the defendant failed to preserve error from the trial court’s denial of his “request to foreclose cross-examination about extraneous offenses” during punishment because the defendant did not testify
- declining to review the appellant’s assertion that the trial court erred when it ruled that the State could cross-examine him about certain offenses if he testified in the punishment phase of his trial for the limited purpose of raising mitigation issues because he did not testily
- explaining that burden of proof instructions may be given for the first time in jury charge as jurors do not encounter burden of proof questions until all evidence has been taken
Written by the judges who cited it.
The opinion
MEYERS, J.,
delivered this concurring opinion,
joined by JOHNSON, J.
In point of error twenty-two appellant claims the trial court erred in admitting victim impact evidence regarding the effect of the victim’s death on the victim’s family members. Appellant argues such evidence is irrelevant to any of the special issues. Appellant’s trial took place before Mosley v. State, 983 S.W.2d 249, 264 (Tex.Crim.App.1998), which held such evidence is relevant to the mitigation special issue. Per Mosley , the majority rejects appellant’s relevance claim, and notes the only other limitation on such evidence, Rule 403, was not raised by appellant.
*482 Appellant cannot be expected to have anticipated the Court’s ruling in Mosley , which came two years after appellant’s trial. It was appellant’s position at trial, based on caselaw existing at that time, that such evidence was irrelevant. Appellant had no reason to assert Rule 403, which only applies to evidence determined to be relevant.
Moreover, the Court emphasized in Mosley that such evidence is not relevant to the issue of future dangerousness. Since all of the special issues are considered by the jury together, if evidence is relevant to one issue, but not to another, the jury should be instructed to that effect. In appellant’s case, the evidence came in at punishment for all purposes, contrary to Mosley .
I continue to hold to the view that we ought to examine more closely cases tried prior to this Court’s opinion in Mosley , where trial courts’ admit victim impact evidence without limitation, in contravention of the few, but specific limitations set forth in Mosley . 1 See Griffith v. State, 983 S.W.2d 282, 291 (Meyers, J., concurring). Because the victim impact evidence admitted in this case was ultimately harmless, I concur.
. The limitations being that such evidence is patently irrelevant to the issue of future danger, that such evidence is admissible only in "the context of the mitigation special issue, to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence, that there are numerous considerations to make in the context of Rule 403, and that such evidence should not involve comparative worth analyses.” Other issues can be raised under Mosley . Defendants may now waive altogether "submission and reliance” on the mitigation special issue and thereby avoid the State’s admission of victim related evidence. Mosley, at 264. At the time of appellant’s trial, the law suggested special issues could not be waived. Powell v. State, 897 S.W.2d 307, 314-18 (Tex.Crim.App.1994)(plurality opinion); id. at 318 (Clinton, J., concurring)(holding "deliberateness” issue could not be waived, even affirmatively, by defendant). Mosley held Powell inapplicable to the mitigation issue. We have no way of now knowing what choice appellant would have made had he been aware of this option at the time of his punishment hearing.