Petition for Writ of Certiorari — Warren Darrell Rivers, Petitioner v. Texas

LL

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,051

WARREN DARRELL RIVERS, Appellant

V.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 0475122

IN THE 228TH JUDICIAL DISTRICT COURT

HARRIS COUNTY

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J.,

KEASLER, RICHARDSON, YEARY, NEWELL, KEEL, and WALKER, JJ., joined. ALCALA,

J., concurred.

OPINION

In 1988, Warren Darrell Rivers was convicted of capital murder and sentenced to

death for intentionally causing the death of eleven-year-old C.N. while in the course of

committing or attempting to commit aggravated sexual assault. TEX. PENAL CODE

§ 19.03(a)(2). We affirmed the 1988 conviction and sentence. Rivers v. State, No. AP-

APPENDIX A

Rivers-2

70,776 (Tex. Crim. App. Apr. 14, 1993) (not designated for publication). Following a

grant of federal habeas corpus relief, the trial court held a new punishment hearing in

November 2014. Rivers v. Quarterman, 661 F. Supp. 2d 675 (S.D. Tex. Sept. 30, 2009).

Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal

Procedure Article 37.0711, § § 3(b) and 3(e), the trial judge sentenced Rivers to death.

TEX. CODE CRIM. PROC. art. 37.07 11, § 3(g).1 Direct appeal to this Court is automatic. Id.

art. 37.0711, § 30). Rivers raises seven points of error.' After reviewing his points of

error, we find them to be without merit. Consequently, we affirm the trial court's

judgment sentencing Rivers to death.

FACTUAL SUFFICIENCY—DELIBERATENESS

In point of error three, Rivers contends that the evidence was factually insufficient

to support the jury's affirmative answer to the deliberateness special issue, which asks

"whether the conduct of the defendant that caused the death of the deceased was

committed deliberately and with the reasonable expectation that the death of the deceased

'Unless otherwise indicated, all future references to Articles refer to the Code of Criminal

Procedure.

2

Rivers has failed to comply with Rule 38.1(b) of the Texas Rules of Appellate

Procedure because, even though his brief includes a table of contents, that table lists his issues or

points of error simply as "APPELLANT'S FIRST POINT OF ERROR," "APPELLANT'S

SECOND POINT OF ERROR," and so forth. TEX. R. Ai. P. 38.1(b) (stating that the table of

contents "must indicate the subject matter of each issue or point, or group of issues or points").

Rivers has also failed to comply with Rule 38.1(f) because he did not include an "Issues

Presented" section nor did he concisely state "all issues or points [he has] presented for review."

Id. at 38.1(f). Nonetheless, in the interest of justice we have attempted to discern his claims, but

to the extent that we cannot, we reject his others as inadequately briefed. Id. at 38.1(i); Lucio v.

State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011).

Rivers-3

or another would result[.] ,3 TEX. CODE CRIM. PROC. art. 37.0711, § 3(b)(1). However, we

do not review the evidence supporting the jury's answer to the deliberateness special issue

for factual sufficiency.4 Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

Point of error three is overruled.

LEGAL SUFFICIENCY—FUTURE DANGEROUSNESS

In point of error five, Rivers alleges that the evidence was legally insufficient to

support the jury's affirmative answer to the future-dangerousness special issue. He argues

that the evidence presented at his second punishment trial showed that his "victims are a

specific, vulnerable subset of society" (i.e., children) to whom he will not have access in

prison. Relying on our decision in Berry v. State, 233 S.W.3d 847 (Tex. Crim. App.

2007), he asserts that the evidence was therefore insufficient to show that he would be a

danger in prison society, which consists of only adults. Rivers's argument has no merit.

The future-dangerousness special issue requires the jury to determine "whether

there is a probability that the defendant would commit criminal acts of violence that

Rivers does not contend that the evidence was legally insufficient to support the jury's

affirmative answer to the deliberateness special issue.

Rivers relies on two cases from this Court to argue that the evidence supporting a jury's

affirmative answer to the deliberateness special issue may be reviewed on appeal for factual

sufficiency: Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and Wardrip v. State, 56

S.W.3d 588 (Tex. Crim. App. 2001). It is true that, "[i]n Clewis, we established 'the proper

standard of review for factual sufficiency of the elements of the offense." Martinez v. State, 327

S.W.3d 727, 736 (Tex. Crim. App. 2010). And, "[i]n Wardrip, we held that 'the deliberateness

special issue may be reviewed for factual sufficiency using the Clewis standard." Id. But Rivers

fails to acknowledge that we later "overruled Clewis and in effect, overruled the Wardrip factualsufficiency holding as well." See id. (citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim.

App. 2010)).

Rivers-4

would constitute a continuing threat to society[.]" TEX. CODE CRIM. PROC. art. 37.07 11,

§ 3(b)(2). In deciding that special issue, the jury is entitled to consider all of the evidence

admitted at both the guilt-innocence and punishment phases of trial. Devoe v. State, 354

S.W.3d 457, 462 (Tex. Crim. App. 2011). The circumstances of the offense and the

events surrounding it may be sufficient in themselves to sustain an affirmative answer to

the future-dangerousness special issue. Id.; Hayes v. State, 85 S.W.3d 809, 814 (Tex.

Crim. App. 2002). An escalating pattern of violence or disrespect for the law may also

support a finding of future dangerousness. Swain v. State, 181 S.W.3d 359, 370 (Tex.

Crim. App. 2005); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

We review all of the evidence in the light most favorable to the jury's finding.

Buntion v. State, 482 S.W.3d 58, 66 (Tex. Crim. App. 2016); see Jackson v. Virginia, 443

U.S. 307, 319 (1979). Assessing the evidence and all reasonable inferences from it in this

light, we determine whether any rational trier of fact could have found beyond a

reasonable doubt that there is a probability the defendant would commit criminal acts of

violence that would constitute a continuing threat to society. Buntion, 482 S.W.3d at 66;

Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App. 2008). The futuredangerousness special issue focuses upon the defendant's character for violence and his

internal restraints, asking whether he would constitute a continuing threat whether in or

out of prison. Coble v. State, 330 S.W.3d 253, 268-69 (Tex. Crim. App. 2010).

Viewed in the light most favorable to the jury's finding, the evidence shows that,

Rivers-5

on the evening of May 3, 1987, the then-twenty-year-old Rivers lured the eleven-year-old

C.N. to a vacant house. While the boy was alive, conscious, and resisting, Rivers inserted

the unlubricated end of a broom handle at least nine inches into C.N.'s rectum, abrading

and lacerating his anus and perforating his colon. Rivers also severely beat C.N. with a

broom stick, strangled him, and stabbed him with a knife three times in the back and once

in the chest. Although one of the stab wounds to C.N.'s back was superficial, the

remaining stab wounds were 31/2 inches deep. The deep stab wounds to C.N.'s back hit

and sliced one of his kidneys in half. These were fatal injuries, but not immediately so.

C.N. died from the deep stab wound to his chest, which penetrated his heart and was

almost instantly fatal.

During his assault on C.N., either before or after C.N.'s death, Rivers ejaculated

onto a washcloth that was found near C.N.'s naked and battered body. A witness who saw

Rivers a few hours after he assaulted and murdered C.N. testified that his demeanor was

"happy" and "prideful," as if he had "[done] something good." The following day,

Rivers's demeanor was similarly elated and celebratory.

In addition to the facts of the instant offense, the State presented evidence of

Rivers's criminal record and bad acts preceding C.N.'s murder, which we summarize as

follows. Rivers was the largest male student at his middle school, and he had an

unpredictable temperament which manifested itself in a frequently changing emotional

state. He bullied smaller students into submitting to his demands, disrupted class,

Rivers-6

disrespected and intimidated teachers and staff members, and was suspended from school

after an incident in which he physically threatened a female teacher.

When he was fifteen years old, Rivers lured an eight-year-old boy who lived in the

same apartment complex into an empty apartment. He then physically and sexually

assaulted the boy. In a separate incident on that same day, Rivers lured the boy's six-yearold brother into an empty apartment and sexually assaulted him.

For his sexual assault of the eight-year-old boy, Rivers was adjudicated delinquent

for aggravated sexual assault of a child and placed in the custody of the Texas Youth

Commission (TYC). While at TYC, Rivers, who possessed an average-range IQ,

demonstrated the ability to act appropriately when he wished to do so. Despite this, he

physically intimidated and bullied other juveniles, became a "negative leader," and was

frequently the subject of disciplinary action. Among other misconduct, Rivers stole food

from other juveniles and persuaded the residents of his dormitory to fight the residents of

another dormitory. Rivers did not typically take responsibility or express remorse for his

actions, and he became belligerent and surly when punished for them. Although twelve

months was the typical length of a stay in TYC, Rivers remained there for twenty months

because of his bad behavior.

Following Rivers's release from TYC and approximately a month before Rivers

killed C.N., police officers responded to a disturbance involving Rivers and his mother.

As the officers arrived at the house, they observed that Rivers was in a rage, screaming,

Rivers-7

"Where is my knife? I'm going to kill that nigger. Where is my knife?" Rivers responded

belligerently when the officers tried to calm him, and he continued searching for his

knife. After grabbing something from a kitchen drawer, R\ivers darted towards the front

door, prompting one of the officers to draw his service weapon. The officer did not fire

his weapon, however, because Rivers's mother jumped in front of him. Rivers shoved his

screaming mother out of the way, after which the officers attempted to subdue him

because they believed that he had stabbed his mother. Rivers wrestled and fought the

officers for more than a minute before back-up officers arrived, at which point he ceased

struggling. The officers arrested Rivers for assaulting his mother and for resisting arrest.

Upon searching him, the officers found a buck knife in the side of his shoe and a tear gas

gun in his jacket pocket.

The facts of the instant offense, Rivers's criminal history, and other evidence

showing his lack of remorse and escalating pattern of violence and disrespect for the law

are sufficient to support the jury's affirmative answer to the future-dangerousness special

issue. Devoe, 354 S.W.3d at 462; Swain, 181 S.W.3d at 370; see Young v. State, 283

S.W.3d 854, 864 (Tex. Crim. App. 2009) (noting that evidence that the defendant had

previously committed aggravated sexual assault supported the jury's finding of future

dangerousness). We have also recognized that a stabbing death is particularly brutal.

King, 953 S.W.2d at 272. "[A] knife is a weapon which by its very nature, forces the user

to be in such close proximity to his victim that he is often touching him or comes into

Rivers-8

contact with him on each blow." Id. (quoting Martinez v. State, 924 S.W.2d 693, 696

(Tex. Crim. App. 1996)). Further, "the character of the weapon is such that several thrusts

are often utilized in order to ensure death—each additional thrust potentially indicating to

any rational juror that such a personal act requires a wanton and callous disregard for

human life." Id.

The State also presented evidence that Rivers's character for violence had not

changed. See Buntion, 482 S.W.3d at 67. Writings found in his cell in 2006, 2010, and

2011 were filled with violent sexual ideations, including the anal rape of an eight-year-old

girl, the gang rape of another girl, and scenes featuring the domination, torture, and

murder of children. This evidence supported a finding that the forty-seven-year-old

Rivers still possessed the same unwholesome sexual interest and character for murderous

brutality toward children that he did at ages fifteen and twenty. See Coble, 330 S.W.3d at

269-70.

Other evidence in the record suggested that Rivers's continuing character for

violence was not limited to children. While he was in prison following his original

capital-murder trial, Rivers threatened to injure or kill correctional officers, participated

in a conversation with other inmates about planning the rape of a female correctional

officer, created disturbances, and violated other prison rules. While he was in the Harris

County Jail awaiting his second punishment trial, Rivers assaulted an older, physically

smaller, shackled inmate for no apparent reason. Rivers, who was restrained by only

Rivers-9

handcuffs, headbutted the inmate, causing the inmate to fall to the ground. He then

repeatedly kicked the inmate, taking advantage of the inmate's more limited range of

movement. When ordered by a jail guard to stop the assault, Rivers pretended that he did

not know what the guard was talking about.

Rivers's reliance on Berry, in which we found the evidence insufficient to

establish the defendant's future dangerousness, is misplaced. See Berry, 233 S.W.3d at

864. The evidence in Berry's case showed that her victim pool was extremely limited

(i.e., confined to a subset of her own children who had been fathered by someone other

than her preferred mate), she had never been violent in any other context, and she had no

criminal record. Id. at 863-64. The evidence also suggested that there was a very low

probability that she would have any more children if sentenced to life in prison. Id.

Rivers's case is distinguishable in that he had a significant prior criminal history,

which included aggravated sexual assault of a child, and he demonstrated an escalating

pattern of violence and disrespect for the law. See Devoe, 354 S.W.3d at 462; Swain, 181

S.W.3d at 370. The evidence further supported a finding that Rivers "is dangerous to a

broader range of potential victims than only" children. See Estrada v. State, 313 S.W.3d

274, 283 (Tex. Crim. App. 20 10) (distinguishing Berry).

In sum, the evidence presented at trial is sufficient to support the jury's affirmative

answer to the future-dangerousness special issue. Point of error five is overruled.

PRIOR DEATH SENTENCE

Rivers-10

In point of error one, Rivers draws our attention to the following statement by the

Supreme Court in Kansas v. Marsh, 548 U.S. 163, 173-74 (2006): "[A] state capital

sentencing system must: [ 1 ] rationally narrow the class of death-eligible defendants; and

[2] permit a jury to render a reasoned, individualized sentencing determination based on a

death-eligible defendant's record, personal characteristics, and the circumstances of his

crime." Id. (rejecting a facial constitutional challenge to a Kansas death-penalty statute

requiring the imposition of the death penalty when the sentencing jury determines that

aggravating evidence and mitigating evidence are in equipoise). Rivers specifically

focuses on the second of the foregoing requirements. Id. According to him, under Marsh,

his Fourteenth Amendment right to due process and his Eighth Amendment right to be

free from cruel and unusual punishment were violated because the jury was made aware

that he had previously received the death penalty for C.N.'s capital murder.

To the extent Rivers is attempting to mount a facial constitutional challenge to

Texas's death penalty statute on the grounds that the statute does not permit a jury to

render a reasoned, individualized sentencing determination based on a death-eligible

defendant's record, personal characteristics, and the circumstances of his crime, his

argument has no merit. See Mosley v. State, 983 S.W.2d 249, 263-64 & n.18 (Tex. Crim.

App. 1998) (op. on reh'g).

To the extent Rivers is attempting to raise an as-applied constitutional challenge to

Texas's death penalty statute, he has inadequately briefed this point of error:

Rivers—II

An appealing party's brief must contain a "clear and concise argument for

the contentions made, with appropriate citations to authorities and to the

record. Failure to provide substantive legal analysis—"to apply the law to

the facts"—waives the point of error on appeal. If the appealing party fails

to meet its burden of adequately discussing its points of error, this Court

will not do so on its behalf.

Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in

the refusal to grant petition for discretionary review) (footnotes omitted); see Lucio, 351

S.W.3d at 896; Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003).

Rivers is correct that we have cited Marsh for the proposition that "a state capital

sentencing system must.

determination.

.

.

."

.

.

permit a jury to render a reasoned, individualized sentencing

See Coble, 330 S.W.3d at 269 (quoting Marsh, 548 U.S. at 173-74).

However, Rivers does not explain how the jury's alleged awareness of his former death

sentence made it unable to render a reasoned, individualized sentencing determination.

Thus, Rivers has failed to apply the law to the facts as the appellate rules require. See

TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at 896; Swearingen, 101 S.W.3d at 100.

However, in the interest of justice, we have examined the record and have found

no references to Rivers's prior death sentence. The passages cited by Rivers include only

discussions that he had already been found guilty and that, if asked to serve on the jury,

the veniremen would have to assess only Rivers's punishment. Even if we assume that the

instances Rivers complains about could possibly be fairly characterized as direct

references to his prior death sentence—or that the jury would have necessarily and

reasonably understood them as such—the complained-of instances did not so infect

Rivers-12

Rivers's punishment retrial with unfairness that they rose to the level of a due process

violation or misled the jury regarding its sentencing role. See, e.g., Muniz v. Johnson, 132

F.3d 214, 223-24 (5th Cir. 1998) ("[T]hese comments were isolated enough that they did

not mislead the jury in its sentencing role or diminish its sense of responsibility in

considering the death penalty."). Point of error one is overruled.

MOTION TO INCLUDE LIFE WITHOUT PAROLE

In point of error two, Rivers alleges that the trial court violated his rights under the

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it

denied his motion to include life without parole as a sentencing option and instead tried

him pursuant to the provisions of Article 37.071 L However, "[t]he trial court did not err

by refusing to apply a punishment provision that, by its own terms, does not apply to an

offense committed in" 1988. See Buntion, 482 S.W.3d at 105. Rivers also fails to

acknowledge that "we have repeatedly rejected claims that the applicable sentencing

scheme is unconstitutional for failing to provide the jury with the sentencing option of life

without parole." Id. (citing Luna v. State, 268 S.W.3d 594, 609 (Tex. Crim. App. 2008)).

Point of error two is overruled.

BRAIN DAMAGE

In point of error four, we understand Rivers to make two claims. First, he alleges

'Article 37.071 governs death-penalty cases when the defendant was convicted after

September 1, 1991. Because Rivers was convicted of capital murder in 1988, Article 37.0711

governs his case. Compare TEX. CODE CRIM. PROC. art. 37.071, with id. art. 37.0711.

Rivers-1 3

that he is categorically exempt from execution under the Supreme Court's holding in

Roper v. Simmons, 543 U.S. 551 (2005), due to his age at the time of the offense. In

Simmons, the Supreme Court held that the Eighth and Fourteenth Amendments "forbid[]

imposition of the death penalty on offenders who were under the age of 18 when their

crimes were committed." Id. 543 U.S. at 578. However, the record in this case shows that

Rivers was twenty years old when he committed the instant offense. Thus, Simmons is

inapplicable.

Second, Rivers argues that he is categorically exempt from execution under the

Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304 (2002), because even though

he is not intellectually disabled, he suffers from brain damage that reduces his moral

culpability and makes a death sentence a disproportionate punishment. In Atkins, the

Supreme Court held that the Eighth Amendment prohibits the execution of intellectuallydisabled offenders. Id. at 321. To the extent Rivers contends that the rule announced in

Atkins extends to, or should extend to, individuals who have brain damage but are not

intellectually disabled, he has not supported his claim with any persuasive authority. See

Soliz v. State, 432 S.W.3d 895, 903-04 (Tex. Crim. App. 2014) (concluding that the

defendant had failed to show an emerging national consensus in favor of prohibiting the

execution of non-intellectually-disabled but brain-damaged adults convicted of capital

murder). Furthermore, in asking us to evaluate the factual sufficiency of the evidence

Rivers-14

supporting the jury's affirmative answer to the deliberateness special issue, he merely reurges his third point of error, which we have already overruled.

We also decline to extend Atkins's categorical exemption to non-intellectuallydisabled but brain-damaged adults. "At the punishment phase of a death-penalty case,

evidence of brain damage

.

.

.

is relevant evidence that may be considered by the jury

along with other relevant evidence. The weighing of this type of evidence is a subjective

determination undertaken by each individual juror." Id. at 904. In this case, the record

shows that the jurors heard Rivers's evidence of brain damage, as well as the other

punishment evidence, and they appear to have made a normative judgment that the

evidence did not warrant a life sentence. Id. We "will not second-guess the jury's

determination." Id. Point of error four is overruled.

ADMISSION OF WRITINGS

In point of error six, Rivers contends that the trial court erred by admitting

evidence of writings found in his cell. As discussed in our analysis of point of error five,

these writings were filled with violent sexual ideations. Rivers argues that the danger of

unfair prejudice substantially outweighed the probative value of this evidence. He asserts

that the writings were thus inadmissible under Texas Rule of Evidence 403. This claim

has no merit.

When an appellant complains that a trial court erred under Rule 403 by admitting

his writings, we review the ruling for an abuse of discretion. See Green v. State, 934

Rivers— i 5

S.W.2d 92, 104 (Tex. Crim. App. 1996). We will not find an abuse of discretion unless

the trial court's decision fell outside the zone of reasonable disagreement. Id.

Here, the trial court did not abuse its discretion by admitting the writings into

evidence. The record shows that the State introduced Rivers's writings as evidence of his

character for violence, which was relevant to his future dangerousness. Coble, 330

S.W.3d at 268-69. In similar circumstances, we have determined that the danger of unfair

prejudice from such evidence did not outweigh its probative value to show future

dangerousness. See Green, 934 S.W.2d at 104 (concluding that the defendant's

description of himself as "trigger happy" was suggestive of future dangerousness and not

unfairly prejudicial under Rule 403); see also Corwin v. State, 870 S.W.2d 23, 35 (Tex.

Crim. App. 1993) (concluding that the jury could infer facts about the defendant's

character for violence from his drawing of a large green monster holding a bloody axe

and a woman's scalp). Point of error six is overruled.

DELIBERATENESS SPECIAL ISSUE

In point of error seven, Rivers alleges that the deliberateness special issue, found

in Article 37.0711, § 3(b)(1), is void for vagueness under Johnson v. United States, 135 S.

Ct. 2551 (2015). In Johnson, the Supreme Court held that 18 U.S.C. § 924(e)(2)(B)—the

"residual clause" of the federal Armed Career Criminal Act of 1984 (ACCA)—is void for

vagueness.' See Johnson, 135 S. Ct. at 2555-57, 2563. Rivers asserts that, by holding the

6

In Johnson, the Supreme Court specifically considered the ACCA's definition of

"violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

Rivers-16

ACCA's residual clause to be void for vagueness, the Supreme Court "ma[de] it clear that

statutory challenges do not have to be consigned to the dungeons of analysis when they

offend the due process clause due to poor drafting." Rivers does not otherwise explain

why Johnson, a decision involving a provision of federal statutory law, has any bearing

on the constitutionality of Texas's deliberateness special issue. Accordingly, point of

error seven is inadequately briefed. See TEX. R. APP. P. 38.1. In addition, we have

previously rejected the same or similar arguments alleging that Article 37.0711

§ (3)(b)(1) is void for vagueness. See, e.g., Chamberlain v. State, 998 S.W.2d 230,

237-38 (Tex. Crim. App. 1999). To the extent Rivers asks us to revisit the issue, we

decline to do so. Point of error seven is overruled.

Having considered Rivers's points of error and finding them to be without merit,

we affirm the judgment of the trial court.

Delivered: December 20, 2017

Do Not Publish

"(i) has as an element the use, attempted use, or threatened use of physical force against the

person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk ofphysical injury to another." See

Johnson, 135 S. Ct. at 2555 (emphasis in original) (citing 18 U.S.C. § 924(e)(2)(B) and

identifying the italicized language as the ACCA's "residual clause").

Search Supreme Court of the United States

5/16/2018

-

Search documents in this case:

Search

No. 17A1043

Title:

Warren Darrell Rivers, Applicant

V.

Texas

Docketed:

March 27, 2018

Lower Ct:

Court of Criminal Appeals of Texas

Case Numbers:

(AP-77051)

DATE

PROCEEDINGS AND ORDERS

Mar 20 2018

Application (17A1043) to extend the time to file a petition for a writ of

certiorari from March 20, 2018 to May 19, 2018, submitted to Justice Auto.

Main Document

Lower Court

Orders/Opinions

Proof of Service

Mar 28 2018

Application (17A1043) granted by Justice Alito extending the time to file

until May 21, 2018.

NAME

ADDRESS

PHONE

Attorneys for Petitioner

Warren Darrell Rivers

#00000928

Polunsky Unit

1400 FM 3452

Palestine, TX 75803

Party name: Warren Darrell Rivers

APPENDIX B

https://www.supremecourtgov/search .aspx?filename/docket1docketfiIes/html/pubIic/17a 1043.html

1/1

WARREN DARREL RIVERS,

Appellant

V.

Appeal from the 228th

District Court of

Harris County

THE STATE OF TEXAS,

Appellee

No. 70,776

OPINION

After a trial held in December 1988, a Harr

is County jury

found appellant, Warren Rivers, guilty of the

May 3, 1987, capital

slaying of an eleven-year-old boy referred to

herein as "the

deceased." The aggravating element of the murd

er was appellant's

aggravated sexual assault of the deceased

.'

At the trial's

punishment phase, the jury answered affir

matively the punishment

issues set forth in Article 37.071(b) of the

Texas Code of Criminal

Procedure,2 and appellant was sentenced to deat

h. Direct appeal

to this Court was then automatic under Arti

cle 37.071(h)

We will

affirm.

.

In eight points of error, appellant chal

lenges: the trial

court's refusal to find that appellant made

a prima facie case that

The relevant language from the indictme

nt read that

appellant "did then and there unla

ly while in the course of

committing and attempting to commitwful

the aggravated sexual assault

of (the deceased],

(did)

ntionally cause the death of

(the deceased] by stabbing [the inte

deceased] with a knife."

2 At the time of appellant's trial, Article

37.071 provided

in relevant part:

.

.

.

-.

(b) on conclusion of the presntation of

the evidence

[at the punishment phase], the cour

t

shal

l submit the

following three issues to the jury:

whether the conduct of the

ndant that

caused the death of the deceased defe

was committed

deliberately and with the, reasonable

expectation

that the death of the deceased or anot

her would

result;

whether there is a probability that the defe

ndant would commit criminal acts of

nce that

would constitute a continuing threatviole

to society;

and

if raised by the evidence, whether the cond

uct

of 'the defendant in killing the deceased was

unreasonable in response to the provocat

ion, if any, by

the deceased.

(c) The state must prove each issue submitte

d beyond a

reasonable doubt, and the

shall return a special

verdict of "yes" or "'no" onjury

each issue submitted.

The record reflects that only issues (b)

(1) and (b) () were

submitted to the jury with respect to appe

llant's conduct in

murdering the deceased.

Unj.

the TeA

Qr4i

s? r1

d4ate'rall article references are to

11

-

RIVERS-2

the prosecution used its peremptory challenges

in a racially

motivated manner; the trial court's admission into

evidence of a

"g shot" of appellant; the trial court's admission

into evidence

• of testimony about the deceased's friendly perso

nality; the trial

court's admission into evidence of the testimony

of the deceased's

mother; the trial court's admission into evidence of

a picture of

the deceased; and the trial court's refusal to instr

uct the jury on

mitigating evidence. We will address appellant's

points of error

in the order in which they occurred during the cours

e of the trial.

Since appellant does not contest the sufficie

ncy of the

evidence, we will engage in only a brief recitation

of the facts.

On May 3, 1987, the deceased's mother sent the decea

sed to get some

cardboard boxes. When the boy did not retur

n, the mother went

searching for her son, but could not find him. Somet

ime on May 4,

1987, a neighbor informed the mother that the body

of a little boy

had been found in a house. The body, which exhibited

multiple stab

wounds, was found in a room with a broken, blood

y broomstick, and

numerous articles of clothing. The body was later

identified as

the deceased. The autopsy revealed that the broom

stick had been

forcibly inserted through the deceased's rectum so

far as to extend

into his intestine, and that a wound to the chest

had caused the

deceased's death.

Based upon the testimony of two witnesses who saw

the deceased

riding his bicycle with appellant on the evening

of May 3, 1987,

the police arrested appellant. Appellant admitted

that he went to

the house where the deceased's body had been found

to have sex with

the deceased. Appellant also told the police that

the deceased had

caused the fresh scratch on his face and that

the deceased's

bicycle was in a field nearby.

In point of error eight, appellant argue

s that the trial court

erred in refusing to find that appellant

had made a prima fade

case that the State used its peremptory challenges

in a racially

discriminatory manner in violation of Batson

v. Kentucky, 476 U.S.

79 (1986). Appellant directs our attention to the

fact that the

State used seven peremptory challenges, thre

e of which were

RIVERS-3

directed at venirepersons who were black. The trial court

held a

hearing and found that appellant failed to make a prima

. facie case.

of racial discrimination. Appellant asks us to remand this case

to

the trial court for a hearing "to afford the State the

opportunity

to rebut the presumption . . . that its peremptory challenges

were

used to discriminate against three black jurors and to

afford

Appellant the opportunity to offer proof that the racia

lly neutral

explanation articulated by the prosecutor, if any, is a

pretext

• •"

The State argues that appellant has waived any error

and

that no prima facie case of discrimination was made.

The record reveals that at the hearing, the State offere

d to

read into the record its reasons for striking the three

members of the venire; Appellant's attorney objected to

black

this offer

and the trial judge refused to allow the State to offer

its reasons

for striking the veniremembers. We do not believe that

appellant

should now be able to seek that which he formerly

prohibited by

objecting, i.e., a recitation of the State's reaso

ns for striking

the three potential jurors. While a violation of Batso

n constitutes an error of constitutional magnitude, this

Court has

previously held that even errors of constitutional magni

tude may be

Briggs v. State, 789 S.W.2d 918, 924 ('rex.cr.App. 1990)

.

Appellant waived any error related to a Batson claim

by objecting

waived.

to the State's offer to articulate its reasons for strik

ing the

three veniremembers who were black.

Therefore, we overrule

appellant's point of error eight.

In point of error seven, appellant complains of the

trial

court's admission into evidence of a "mug shot" of appel

lant. At

trial, the State introduced a photospread with pictu

res of six

different men. These pictures had been used by the polic

e during

the investigation of the deceased's death. The pictu

res are

frontal views of the faces of six black males, one

of which is

appellant. Lines indicating the height of each subject

appear in

the background of five of the six pictures, including appel

Appellant argues that even though the photographs

information regarding the date or place of arrest:,

lant's.

óontain no

the pictures

RIVERS-4

were so inherently and highly prejudicial that his

conviction

should be reversed. The State argues that appel

lant's objection on

appeal differs from that offered at trial,

that nothing in the

record supports appellant's assertion that the pictu

res are "mug

shots," that the pictures do not constitute

evidence of an

extraneous offense, and that the trial court comm

itted no error in

admitting the, photograph.

At trial, appellant objected to the admission

of the photo-

graphs

first on the grounds that these are, obviously

mug shots

showing a [sic] depicting lines behind the

number three suspect, which has been a pershead of the

been already identified as Warren Rivers.on who has

They are

obvious on their face to be mug shots,

they show the

heights and numbers on the sides of theand

picture that is

depicted as Warren Rivers.

We disagree with the State's contention that

this objection differs

from that argued on appeal. We conclude

, however, that the

objection is insufficient to preserve any erro

dice. The trial judge must specifically be

to assess the probative value and the

r regarding preju-

given the opportunity

prejudicial effect of

evidence in order to preserve such a

question for review.

Montgomery v. State, 810 S.W.2d 372, 388

(Tex.Cr.App. 1990).

Appellant's objection in no way directed the

trial court to weigh

the probative value and prejudicial effect

of the photograph.

Therefore, we overrule appellant's point of

error seven.

In point of error six, appellant complain

s of the trial

court's admission into evidence of the testimony

sister regarding the deceased's friendly

of the deceased's

personality.

The

deceased's sister testified that when the decea

sed would meet a new

person, "he acts like he been knowing them. He

say, hi, my name is

C. And then he might strike up a conve

rsation. And then the

next time he see that person he say, that'

s my friend. I know him

,

from wherever they met him." Immediately prior

to this testimony,

appellant lodged two objections, each of whic

h stated that the

testimony was "not relevant." Appellant argue

s that the admission

,of the testimony violated Texas Rule of Crimi

nal Evidence 402 and

the Eighth Amendment to the United States Const

itution because the

RIVERS-5

testimony was not relevant "and its sole purpose was to inflame the

minds of the jury." The State argues that the evidence was

relevant and that appellant waived any error by failing to object

when the witness related the same information earlier in her

testimopy.

The record reveals that the witness did testify about the

deceased's friendly, personality moments before she gave the

testimony of which appellant complains. Prior to the latter

testimony, the following exchange between the prosecutor and the

witness occurred:

(PROSECUTOR): Was your brother the type of person

who made friends easily?

(WITNESS]: Yes.

[PROSECUTOR]: Would it be possible for your brother

to see somebody on the street and say hello and in the

next moment be his friend?

[WITNESS]: Yes.

[PROSECUTOR]: And had you observed your brother do

this often?

[WITNESS]: Yeah, yes.

Appellant lodged no objection to this line of questioning. When a

defendant objects to evidence, but the same evidence is introduced

at another time without objection, the defendant may not complain

on appeal about the admission of that evidence. Wilkerson V.

State, 736 S.W..2d. 656, 662 (Tex.Cr.App. 1987). The admission of

this testimony without objection also waives any error concerning

appellant's Eighth Amendment claim. See Briaas, 789 S.W.2d at 924.

Moreover, assuming arguendo that appellant preserved the

• error, we would still be unable to conclude that the trial court

• erred in admitting the testimony. The record reveals that the

deceased never mentioned knowing appellant.

The testimony of the

deceased's sister is relevant because it provides an explanation

concerning how the deceased came to be in appellant's company.

whether this evidence was more probative than prejudicial constitutes another question, which appellant's relevance objection would

have been insufficient to preserve. See Montgomery, 810 S.W.2d at

388. Having concluded both that appellant waived any error and

RIVERS-6

that the evidence was relevant, we overrule

appellant's point of

error six.

Appellant's points of error three, four

, and five are

In points of error three and five, appellan

t

complains of the trial court's admission

into evidence of the

testimony of the deceased's mother. In poin

t of error four,

appellant complains of the trial court's admis

sion into evidence of

a photograph depicting the deceased smiling.

interrelated.

Appellant argues that the trial court should

the deceased's mother from testifying because

have prohibited

her testimony added

no material evidence to the case. Appellan

t argues that the

picture should have been suppressed because the

deceased's identity

was never contested. Appellant contends that

the testimony and the

photograph were introduced by the State

for the purpose of

inflaming the jury. In support of this, appe

llant directs our

attention to the fact that the deceased's moth

er cried while she

was testifying. Also, appellant directs our

attention to the

State's argument during the punishment phas

e during which the

prosecutor described the photograph of the

deceased as depicting

"the work of God, which is a beautiful work

."4 The State argues

in response that appellant failed to preserve

any error for review.

by lodging only a general objection before

the deceased's mother

testified. Concerning the photograph of the

deceased, the State

argues that the trial judge did not abus

e its discretion in

admitting the picture into evidence and that

the same information

was relayed to the jury through the testimon

y of the deceased's

mother.

Concerning the testimony of the deceased's mothe

r, we disagree

with the State's contention that appellant's

objection failed to

preserve error. The record shows that appellant

objected immediately after theState called the witness to test

ify. A hearing was

held outside the presence of the jury. At the

hearing, appellant

On appeal, appellant assigns no point of erro

r to this

argument. We note, however, that appe

llant lodged no objection to

the prosecutor's argument at trial, which

would waive any error in

the argument. Tex. R. Criin. Evid. 103(a) (1).

il

RIVERS-7

argued that the testimony from the deceased's mothe

r would add

nothing to the case, but would greatly prejudice

the jury. The

State made a proffer concerning what the testimony would

show.

Appellant reurged his objections that the testimony

was irrelevant

and would cause the jury to render a decision based

upon sympathy

and outrage rather than upon a dispassionate analysis

of the facts.

The trial court overruled the objections, and refus

ed to allow

appellant to have a running objection.5 The trial court

then

informed appellant that he could still lodge objections

to specific

questions..

We conclude that appellant lodged a sufficiently

specific objection at a proper time and preserved the

issue for

review.

We disagree, however, with appellant's contention

testimony was irrelevant.

that the

While other witnesses testified about

some of the same subject matter about which the decea

sed's mother

testified, the deceased's mother related the facts

pertaining to

how she sent the deceased on an errand to find some

boxes, how the

deceased left on his bicycle to travel the short

distance to a

fruit stand to get those boxes, and how the decea

sed failed to

return to the house. This evidence was relevant to

the context of

the offense, as it provided an explanation for how

the deceased

came to be in the area where he met appellant. The

analogous case

of Mayes v. State, 816 S.W.2d 79 (Tex.Cr.App. 1991)

supports this

analysis.

In Mayes, the State introduced evidence that appel

lant had

committed a crime while in the administrative segre

gation unit of

a prison.

816 S.W.2d at 82.

The evidence showed that the

administrative segregation unit was where inmates

who were "a

threat to the general population of the prison" were

This Court held that "character evidence offered on

that it is 'background' evidence helpful to a jury,

held. id

.

the rationale

but apparently

in conflict with the proscriptions of [Texas Rule

of Criminal

Evidence] 404(b), is not admissible as one of the

alternative

We need not reach the quest

of whether appellant was

properly denied a• running objectionion

in this case because of our

disposition of this point of error on other grounds.

RIVERS-8

purposes [for which] such evidence may be introduced

under Rule

404b)." Id . at 88. We also stated, however, that such background

evidence was relevant. Id. at 85. In this case, the majority

of

the testimony of the deceased's mother contained no

character

elements and did no more than set the context of the offen

se.

While the deceased's mother was testifying, appellant

no objections to the cumulative nature of the testimony

lodged

or to the

prejudicial aspects thereof.6 This Court has previously

held that

when a body of evidence consists of admissible and inadm

issible

components, a general objection fails to preserve error

. Wintters

v. State, 616 S.W.2d 197, 202 (Tex.Cr.App. 1981); Alvarez

v. State,

536 S.W.2d 357, 361 (Tex.Cr.App. 1976), cert. denied, 429

U.S.. 924.

Since we have already concluded that portions of the testi

mony of

the deceased's mother were admissible, we also conclude

that appellant's general objection failed to preserve for

review the

admissibility of those portions of the testimony which

may have

been erroneously admitted. Therefore, we overrule appel

lant's

points of error three and five concerning the testi

mony of the

deceased's mother.

-

Concerning appellant's point of error four pertaining

to the

admission of the photograph depicting the deceased smili

ng, the

record reveals that the deceased's mother identified the

deceased

in the picture, stating, "That's my son. That's just

what he

looked like. He always had a smile." Appellant

lodged no

objection to this testimony and objected to the admis

sion of the

photograph on the grounds that it was "not relevant to any

issue in

this case whatsoever." Only on appeal, however, does

appellant

argue that the photograph constituted an attempt to

inflame the

jury.

We conclude that point of error four affords appellant

6

no

The record reveals that while the deceased's mothe

r

testified, appellant lodged only two objec

tions. One of these

objections concerned the admission of a photograph

and the other objection-concerned what the decea of the deceased

mother was

doing when she sent the deceased on the errand sed's

retrieve the

boxes. After the deceased's mother concluded to

her testimony,

appellant reurged his objections concerning the cumul

ative nature

and prejudicial effect of the testimony.

RIVERS-9

grounds for relief. When the State tendered

the photograph,

appellant lodged only a relevance objection.

This general

objection failed to afford the trial judge. an oppor

tunity to weigh

the probative value and prejudicial effect of

the photograph and

failed to preserve any such issue for review.

Montgomery, 810

S.W2d at 388. For this reason, we overrule appel

lant's point of

error four.

In points of error one and two, appellant argues

trial court erred in failing to instruct the jury

phase to consider all mitigating evidence that

that the

at the punishment

had been presented.

Appellant argues that he presented evidence that

home life due to his mother's relationships with

he had an unstable

many men, that one

of these men was named Benny J. Smith who

"physically assaulted

Appellant from the time Appellant was eight

until he was thirteen

years old," that appellant's conduct worsened when

Smith was living

with appellant and his mother, that appellant's mothe

killed Smith, that appellant was a poor student,

r accidentally

and that appellant

could not read.1 Appellant argues that this evide

nce went beyond

the scope of the two .special issues and required

an instruction

concerning the mitigating effect that such evide

nce could be given.

In support of this position, appellant directs our

attention to the

case of Penry v. Lvnauh, 492 U.S. 302 (1989).

The State argues

that the evidence was not mitigating in nature

and could be given

its fullest effect according to the instructio

ns actually given.

In points of error one and two, appellant

asserts that the

jury should have been instructed concerning

the mitigating effect

that such evidence may have regarding special

issues one and two,

respectively. At trial, however, appellant reque

sted a mitigation

instruction regarding only the first special issue

-'s This instrucThe record reveals that only one witness testi

fied that

appellant was illiterate. Appellant

ted to this testimony and

the trial court instructed the jury objec

to diargard it. Therefore,

there was no evidence from which the

jury could conclude that

appellant could not read.

this reason, we will address no

analysis to appellant's bare For

assertions, unsupported by the record,

that he Is illiterate.

8

Appellant requested the following instruction:

(continued...)

RIVERS-b

tion, as set out in footnote eigh

t, does not constitute a Penry

instruction. That is thoroughly unde

of the fact that this case was trie

rstandable, however,1n light

d before the Supreme Court

issued its opinion in Penry. On appe

al, appellant basically argues

that the jury should have been pro

vided with a vehicle through

which it could consider the evidence

and express Its reasoned moral

response thereto. This Court has

previously held that an issue

regarding Penry evidence may

be raised for the first time on

appeal. See Selvage v. Calling, 816

S.W.2d 390, 392 1 (Tex.Cr.App.

1991) (In answering a certified que

stion from the United States

Court of Appeals for the Fifth Circ

uit, this Court decided that the

petitioner's Penry claim was not

procedurally barred by his failure

to object at trial because the clai

m constituted an assertion of a

right not recognized at the time of

the trial).• Therefore, we will

address the issue of whether

.appellant was entitled to a Penry

instruction regarding mitigating evid

ence.

We have inthrpreted Penry to mean

scheme offends no federal constit

both allows the jury to consider

utional provisions if the scheme

relevant mitigating evidence and

provides the jury some means of

expressing a reasoned moral

response to that evidence in making

an individualized assessment of

punishment. Coss v. State, 826 S.W

In analyzing a Penrv-type claim,

presented at trial is specifically

that a capital sentencing

.2d 162, 165 (Tex.Cr.App. 1992).

we look to see if the evidence

relevant to a defendant's "moral

culpability," i.e. whether the evid

concluding that the defendant is

ence provides a basis for

less deserving of capital punish-

ment. Id . at 165. If the relation

ship between the particular

8(...continüed)

You are instructed that

may consider the the

[sic] testimony of Esta (sicyou

sim) Mae JeffersOn

[appellant's mother] regarding pas

Warr

en Rivers's family

history as relevant, if it is,

to the issue of whether

the conduct of the Defendant, Warr

en Darrell Rivers, that

caused the death of (the deceas

ed,) was committed

deliberately and with the reas

le expectation that the

death of (the deceased,) wouldonab

result.

However, if you do not find the

testimony of Esta

Mae Jefferson regarding War

ren Rivers [sic) family

history relevant to the issue of

'deliberate' you may not

consider Esta Mae Jefferson's test

imony at all and will

disregard it.

RIVERS-11

case's evidence and the special issues is such

that the special

issues provide no means for the jurors to respond

in a morally

reasoned way, the statute is unconstituti

onal as applied. Id .

From this, a defendant is entitled to a Penr

y instruction only if

the evidence is relevant to the case in a manne

r that is beyond the

scope of the special issues.

The capital punishment statute is not unconsti

tutional' as

applied to appellant's case. Appellant's evid

ence "is not of the

same quality and character that the Supreme Court faced

Trevino M. State, 815 S.W.2d 592, 622 (Tex.Cr.App.,

in penrv."

1991), overruled

on other grounds, 112 S.Ct. 1547 (1992). Whil

e appellant claims

that Benny J. Smith assaulted him from the time

he was eight until

he was thirteen, appellant's mother could testi

fy that she knew of

only three occasions when Smith assaulted

the appellant. This

evidence differs wholly from that of Johnny

Paul Penry, who "was

shown to have had a gruesome upbringing wher

e as a youth he was

beaten frequently resulting in a variety of leani

ng and behavioral

dysfunctions in his adult life." 1d . Neit

her appellant's unstable

childhood nor his difficult home life would requi

re that a mitigation instruction be given. See Draughon V.

State, 831 S.W.2d 331,

339 (Tex.Cr.App. 1992); Moody, v. State, 827

S.W.2d 875, 896-897

(Tex.Cr.App. 1992). Finally, appellant's mediocre perf

ormance in

school fails to mandate that the trial cour

t instruct the jury

regarding Penry-type mitigating, evidence.

Kelly V. State, 832

S.W.2d 44, 46 (Tex.Cr.App. 1992). As for the

fact that appellant

knew his mother had killed Benny J. Smith,

we conclude that this

evidence "is otherwise irrelevant to an indi

vidualized assessment

of the deathworthiness of appellant." Lackey

v. State, 819 S.W.2d

111, 134 (Tex.Cr.App. 1989). Therefore, we concl

ude that appellant

was not entitled to a Penry instruction rega

rding mitigating

evidence. The jury's assessment of all of

appellant's relevant

evidence could be expressed through the spec

ial issues.

We

overrule appellant's points of error one and two.

The judgment of the trial court is AFFIR

MED.

RIVERS-12

DELIVERED APRIL 14, 1993.

EN BANC

DO NOT PUBLISH..

CLINTON, Jr., dissents for reasons given in Part II of his

dissenting opinion in Elliott V. State, No. 69,760, deliv

ered this day.