Janecka v. State

TEAGUE, Judge,

dissenting.

This is a companion case to Duff-Smith v. State, 685 S.W.2d 26 (Tex.Cr.App.1985).

The facts here are just as shocking as those set out in Duff-Smith, supra.

There is no question from this record and the record of Duff-Smith, supra, that appellant and the others who conspired and participated in the murders of Gertrude Zabolio, Duff-Smith’s mother, Diana Wan-strath, Duff-Smith’s sister, Diana’s husband, John, and their adopted baby Kevin were then persons of extremely low moral character, and each one then had a heart regardless of social duty and a mind fatally bent on mischief. How they became that way is, of course, a subject for other more skilled professionals to study, and not for members of this Court to decide.

Putting the two records together, the facts reflect that Duff-Smith solicited, encouraged or directed Walter Waldhauser to murder his mother, Gertrude Zabolio, so that he and his sister Diana and Diana’s adopted child could then become the sole heirs of her estate. Waldhauser solicited Paul McDonald to commit the murder. McDonald, in turn, hired appellant, who actually strangled Duff-Smith’s mother to death. Having accomplished that deed, Duff-Smith then decided to kill his sister, Diana, her husband, John, and their adopted baby, Kevin, so that he could become the sole heir of Diana’s estate. Wal-dhauser was again chosen by Duff-Smith to take care of the arrangements. Wal-dhauser solicited appellant to carry into execution Duff-Smith’s desires. With Wal-dhauser assisting, inside of the Wan-strath’s residence, appellant shot Diana, her husband, and their adopted baby, which caused their deaths. With the death of his mother, his sister, and her adopted baby, Duff-Smith then became a sole heir. His enjoyment of the proceeds from those estates, however, was only temporary due to extremely tenacious investigative work that led to the arrests of all the participants.

The question that this Court must answer in this cause is not how amoral or immoral appellant might have become, or how far he had fallen in his lifetime from being a good Catholic boy to a hired executioner, but, instead, is whether appellant was deprived of any of the many legal rights that our law guaranteed him before he could be lawfully convicted and sentenced to a premature death, and, if so, whether such deprivations rise to the level that would warrant this Court reversing his conviction and sentence of death. For reasons I will give, I find that appellant’s conviction and sentence of death should be reversed by this Court.

After reading the discussion that is in the majority opinion that relates to appellant’s first contention, that the trial court erred in not sustaining his pretrial motion to quash, I now realize that I inadvertently failed in the dissenting opinion that I filed in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), to dub that opinion “Adams the Execrable”, for that is exactly what it is. Opdahl v. State, 705 S.W.2d 697 (Tex.Cr.App.1986), which I authored for the Court, is merely the little stare-decisis bastard of “Adams the Execrable.” Of course, because Opdahl, supra, lies within the bowels of “Adams the Execrable”, once we kill off “Adams the Execrable,” “The Little Bastard Opdahl’s” death is assured. I find *836 that today is a fine day to kill off “Adams the Execrable.” Let's do it! 1

Because the majority declines my invitation, for this and other reasons, see post, I am compelled to dissent, but do so respectfully.

The majority opinion is simply wrong, wrong, wrong in continuing to give meaning to Adams, supra. There is absolutely no legal rhyme or reason, other than aggressiveness and assertiveness on the part of at least five members of this Court, why that decision of this Court should not be expressly overruled.

The most egregious thing wrong with Adams, supra, lies in the fact that, once it is determined that the State erred in not giving the defendant sufficient notice in the charging instrument, pretrial, this Court will, in making the determination whether the error was harmful, actually apply the presumption of guilt standard, when the determination should be decided on the basis of the presumption of innocence standard.

It is or should be axiomatic that questions of notice in the charging instrument are determined under the presumption of innocence standard, and not the presumption of guilt standard. To use the presumption of guilt standard to make the determination whether the error in refusing to quash the charging instrument was harmful makes a mockery of the presumption of innocence standard that exists in our criminal law. In sum, once it is determined that the trial court erred in not granting the defendant’s motion to quash the charging instrument, the issue of whether it was harmful should be decided in the light that the defendant is presumed innocent with committing any criminal wrong, and not decided in the light that he is now presumed guilty, which is what the majority opinion in Adams, supra, and here actually, albiet implicitly, do.

I must ask the members of this Court who vote for the majority opinion the following questions: If it is determined that the trial judge erred in not granting the defendant’s pretrial motion to quash the charging instrument, for failure to give the defendant sufficient notice of what he is charged with committing, once the trial has been held, unless the defendant has spent virtually all of his time during trial trying to establish why the error of the State in not giving him sufficient notice pretrial was not harmless, which, if that occurs, will undoubtedly unnecessarily delay his trial, how will the defendant ever establish, in the context in which the case was presented and in light of the entire record of appeal, that the error was harmful? That the defective notice egregiously harmed him? That it hindered his ability to present a defense to the charge? That it prejudiced any substantial right that he might have had? That it misled him to his prejudice? That the error had a great impact on him? That the impact was significant? That the impact adversely affected him?

The answers to these questions, of course, may be answered in only six words: “Under ‘Adams the Execrable,’ he can’t.” To say that he can represents only wishful thinking in my view. The majority opinion of Adams, supra, and here closely resemble asking someone questions about a mov- ' ie that he has just seen, rather than asking questions without him having seen the movie.

When the error cannot, as a matter of law or fact, ever be reversible error, why dilly, dally around? Why doesn’t the aggressive and assertive majority of this Court just haul off and hold the following: “We need not decide whether the trial court erred in not granting the appellant’s motion to quash the indictment because, even if we found error, as a matter of law, he has failed to show, in the context of the way that the case was tried, and given the en *837 tire record of appeal, egregious harm.” Why spend almost eight pages dispensing a bunch of meaningless gobbledygook to the bench and bar of this State when the issue can be decided in one sentence? Why give the illusion that such error can be reversible error when it will always be held to be harmless?

I also dissent to the majority opinion because I believe that the two pronged test of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 728 (1964), which this Court has in the past religiously adhered to, should not be abandoned in favor of the “totality of the circumstances” test pronounced in Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). The Aguilar, supra, two pronged test has served the criminal jurisprudence of this State well. Simply because an aggressive and assertive majority of the Supreme Court woke up one day and decided to vote to abandon the Aguilar two pronged test is simply not justification for the members of this Court to follow suite. When it comes to interpreting our State law, we do not exist as mimics of the Supreme Court of the United States. Therefore, I respectfully dissent to the majority’s reliance upon Gates, supra, to dispose of appellant’s contention that the arson affidavit does not contain sufficient probable cause facts. For the reasons stated in Winkles v. State, 634 S.W.2d 289, 291-293, 295-297 (Tex.Cr. App.1982) (On original submission), the arson affidavit clearly does not, under Aguilar, supra, set out sufficient facts that might establish that the “source” was “credible”.

In disposing of appellant’s points of error numbered three and four, that the trial court erred in admitting into evidence appellant’s extrajudicial oral and written statements, I find that the majority’s holding that appellant’s question to Detective McNaulty, “How is everyone in Georgia doing?”, “reflected a desire on the part of appellant to open up a more generalized discussion relating directly or indirectly to the investigation [of the Wannstrath murders]” borders on being a statement that comes to us from fantasyland, and I will not further comment on this because to do so might cause one to conclude that I, too, have drifted over into fantasyland from the real legal world that we must live in. I will therefore simply dissent to the majority opinion’s overruling appellant’s third and fourth points of error on the basis that it does.

I respectfully dissent not only for the above expressed reasons, but for others as well, but to do so would only unnecessarily elongate this opinion.

. Although often cited by this and other courts, a careful reading of this Court’s opinion of American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), concerning the discussion about a defendant’s motion to quash, easily reveals that everything stated after the statement, "This ground is multifarious ...” (602), is obiter dictum, as that legal term is defined in Black’s Law Dictionary.