Appeal from the 184th District Court of Harris County
For Appellant: Connie B. Williams, Donald Davis, Houston, Tx.
For Appellee: John B. Holmes, Jr., D. A. & Mary Lou Keel, Roberto Gutierrez & Joe Owmby, Asst. D. A.'s., Houston, Tx. Robert Huttash, State's Attorney, Austin, Tx.
EN Banc. Campbell, Judge, Judges Clinton & Overstreet concur in the result, Baird, Judge dissenting opinion
At a trial held in the 184th District Court of Harris County in July 1990, a jury found appellant, Ponchai Wilkerson, guilty of capital murder.*fn1 At the punishment phase of appellant's trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b) of the Texas Code of Criminal Procedure, and appellant was sentenced to death as required by Article 37.071(e).*fn2 Direct appeal to this Court was then automatic under Article 37.071(h). We now affirm.
In sixteen points of error, appellant challenges: the sufficiency of the evidence to prove beyond a reasonable doubt that he intentionally caused the death of the deceased; the sufficiency of the evidence to support the jury's affirmative answer to the punishment issue concerning future dangerousness; the trial court's refusal to grant a mistrial after certain evidence of uncharged misconduct was admitted during the punishment phase; the trial court's refusal to grant a mistrial after the jury foreman revealed she was acquainted with a prosecution witness; and the trial court's refusal to grant a mistrial based on the prosecutor's final argument during the punishment phase.
In his first point of error, appellant argues that he has been denied his federal right to due process of law because the evidence at his trial was insufficient to support the jury's implicit finding that he intentionally caused the death of his victim. See footnote one, supra. Appellant notes that he testified at trial that he shot but did not intend to kill his victim, and argues that that testimony, like the testimony of the defendant in Foster v. State, 639 S.W.2d 691 (Tex.Crim.App. 1982), was "sufficient to rebut the presumption of intent to kill based on his using a gun." The State argues in response that the jury was free to disbelieve appellant's trial testimony and to infer from the circumstances of the offense that appellant intended to kill.
Viewed in the light most favorable to the jury's verdict, the evidence presented at the guilt/innocence phase of appellant's trial established the following: At approximately 2:30 p.m., November 28, 1990, appellant entered the Houston jewelry store of 43-year-old Chung Myong Yi. After browsing for a few minutes, appellant pulled a handgun out of his jacket, pointed it at Chung's head, and demanded money from him. Moments later, appellant shot Chung in the forehead from a distance of less than one foot. He then left the store carrying a box of jewelry. A subsequent expert examination of the handgun revealed that eight pounds of pressure on its trigger were necessary to fire it.
Our determination of appellant's first point of error is governed by familiar principles. First, the jury, as the sole judge of the weight and credibility of the evidence, was free to accept or reject any or all of the evidence of either the State or the defense, even if that evidence was uncontradicted. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App. 1981). Second, due process of law requires that appellant's conviction be supported by evidence sufficient to rationally prove all of the elements of the offense--including his intent to kill*fn3 --beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Therefore, as an appellate court, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict and to determine whether, based on that evidence and those inferences, a rational jury could have found beyond a reasonable doubt that appellant intended to kill. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1973). Thus, our review is a very limited one. We do not act as a thirteenth juror re-evaluating the weight and credibility of the evidence. Rather, we act only "as a final, due process safeguard ensuring . . . the rationality of the factfinder." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
Utilizing the required standard of review, we must reject appellant's insufficiency claim. A rational jury could certainly infer that appellant intended to kill from the manner in which he handled his weapon, the amount of pressure needed to fire the weapon, the distance from which he fired, the nature of the injury he inflicted, and his flight from the scene. See Vuong v. State, 830 S.W.2d 929, 934 (Tex.Crim.App. 1992) (deadly manner of use of gun); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991) (heavy trigger pressure required to fire gun); Thompson v. State, 691 S.W.2d 627, 630 (Tex.Crim.App. 1984) (short distance between victim and gun, and flight from scene).
In Foster we held that no rational jury could have found that the defendant intended to kill, but the evidence in that case was very different from the evidence adduced at appellant's trial. Admittedly, the evidence in Foster, like the evidence at appellant's trial, showed that the defendant shot and killed his victim at close range and that the defendant denied having the intent to kill. But in Foster, other evidence showed that (1) the defendant and the victim had a loving relationship on the evening of the shooting; (2) the weapon involved was defective and fired easily, even with its safety on; (3) after the shooting, the defendant promptly sought medical assistance for the victim and then notified the police; (4) the defendant freely admitted handling the weapon when it discharged; and (5) he was extremely distraught after the shooting. At appellant's trial, in contrast, there was abundant evidence from which a rational jury could conclude he intentionally shot Chung in the course of robbing him. Point of error number one is overruled.
In point of error number two, appellant maintains the evidence adduced at his trial was insufficient to support the jury's affirmative answer to the second punishment issue, concerning his future dangerousness. See footnote two, supra. Appellant argues that
the only evidence presented by the State concerning the issue of whether [he] would constitute a continuing threat to society was [his] involvement in several unadjudicated extraneous offenses and instances of misconduct. The State presented no character evidence and no psychiatric evidence. The appellant, on the other hand, presented psychiatric and psychological evidence [showing that he has a reasonable chance of being rehabilitated], evidence of [a relatively normal] family history, evidence of remorse, and evidence of current behavior without the effect of alcohol and drugs.
Appellant argues further that he "was only 20 years of age when the act occurred." The State argues in response that "the evidence shows that appellant was on an extended, murderous rampage that culminated in the charged offense," and that, consequently, "[a] rational factfinder could conclude beyond a reasonable doubt that appellant would probably commit future acts of violence that would pose a continuing threat to society."
Viewed in the light most favorable to the jury's finding, the evidence at the punishment phase of appellant's trial established the following: On August 2, 1990, in Fort Bend County, appellant pled guilty to the felony offense of unauthorized use of a motor vehicle and was placed on probation for three years. He failed subsequently to meet any of the conditions of his probation.
At around 8:50 p.m., November 5, 1990, appellant participated in the aggravated robbery of an adult male at a self-service car wash in Houston. In the course of the robbery, appellant assaulted the victim.
At around 10:30 p.m., November 13, 1990, appellant participated in the aggravated robbery of a Houston convenience store clerk. In the course of that robbery, appellant's accomplice, Wilton Bethany, shot the clerk in the chest with a shotgun.
On the night of November 18, 1990, appellant and Bethany burglarized a clothing store in Houston and stole approximately $10,000 in merchandise.
At around 4:30 p.m., November 20, 1990, appellant drove a van into the parking lot of the Fondren Glen Apartments in Houston and, for no apparent reason, opened fire on two young males, shooting one in his arm, the other in his hand. A stray bullet shot a young female nearby. Later, on the night of November 20, appellant and Bethany burglarized a gun shop in Houston and stole $7,000 worth of guns.
At around 10:00 p.m., November 23, 1990, appellant and Bethany drove a car into the parking lot of the Westwood Village Apartments in Houston. After the car stopped, appellant and Bethany exited and started shooting for no apparent reason. Bethany shot two males who were standing in the parking lot. Appellant fired his weapon randomly into the apartments themselves, stating, "Don't fuck with me. I will kill all you whores." A few hours later, appellant and a second male drove a car into the parking lot of the Breckenridge Apartments in Houston. After coming to a stop, both appellant and his companion opened fire on several apartments, again for no apparent reason, shooting one occupant in his arm.
On the night of November 25, 1990, appellant and Bethany burglarized a second gun shop in Houston and stole 86 guns.
Finally, there was evidence that appellant had habitually abused alcohol, marihuana, and cocaine.
Our determination of appellant's second point of error is again governed by familiar principles. First, the State carried the burden of proving beyond a reasonable doubt that the answer to punishment issue two was yes. Tex. Code Crim. Proc. art. 37.071(c). Second, the jury, in answering punishment issue two, was entitled to accept or reject any or all of the evidence presented by either side at both the guilt/innocence and punishment phases of trial. Valdez v. State, 776 S.W.2d 162, 166-167 (Tex.Crim.App. 1989). As an appellate court, therefore, our task is to view all the evidence in the light most favorable to the jury's affirmative answer, and then determine whether, based on that evidence, any rational jury could have found, beyond a reasonable doubt, that the answer to the second punishment issue was yes. Harris v. State, 738 S.W.2d 207, 225-226 (Tex.Crim.App. 1986).
Utilizing the required standard of review, we must again reject appellant's insufficiency claim. Prior adjudicated criminal acts, prior unadjudicated acts of violence against people and property, and habitual drug abuse have all been held by this Court to constitute evidence of future dangerousness. Farris v. State, 819 S.W.2d 490, 498 (Tex.Crim.App. 1990). Furthermore, in answering special issue two, a rational jury need not give controlling weight to the defendant's relative youth or to a lack of psychiatric evidence indicating his future dangerousness. Ellason v. State, 815 S.W.2d 656, 663-664 (Tex.Crim.App. 1991); Huffman v. State, 746 S.W.2d 212, 224 (Tex.Crim.App. 1988). In short, considering the record evidence in the necessary light, we conclude that it was sufficient to rationally support an affirmative answer to the second punishment issue. Point of error number two is overruled.
In point of error number three, appellant complains of the trial court's refusal, at the punishment phase, to grant a mistrial after a prosecution witness was allowed to testify "without having a bench conference prior to the admission of her testimony." With respect to this point of error, the record reflects that: (1) appellant filed a pretrial motion in limine, which was granted, asking that the prosecution be prohibited from "mentioning in any manner" instances of uncharged misconduct without first approaching the bench and obtaining a ruling on admissibility; (2) the witness in question testified during the punishment phase about an instance of uncharged misconduct allegedly committed by appellant; and (3) appellant did not make his motion for mistrial until the conclusion of the State's case at punishment, long after the witness in question had testified.
Under these circumstances, appellant's complaint has not been preserved for appellate review. The granting of appellant's pretrial motion in limine certainly preserved no error. "For error to be preserved with regard to the subject matter of [a] motion in limine, it is absolutely necessary that an objection be made at the time when the subject is raised during the trial." Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App. 1985). Nor did appellant's untimely motion for mistrial preserve error. Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim.App. 1990). Point of error number three is overruled.
In points of error numbers four through nine, appellant argues the trial court erred, at the punishment phase, in refusing to instruct the jury to disregard certain testimony of uncharged misconduct allegedly committed by appellant, and in refusing to grant his motion for mistrial based on the admission of that testimony. Appellant argues specifically that
the State has wholly failed to prove offenses . . . for the reason that the [State's] witnesses [did] not testify to an offense under the laws of the state of Texas. Now, they [did] testify to misconduct, possibly on the part of the defendant and others, but they [did] not testify to any [statutory] offenses. . . .
We perceive no error. At the time of appellant's trial, Article 37.071(a) provided that, at the punishment phase of a capital trial, "evidence may be presented as to any matter that the court deems relevant to sentence." That language allowed the admission of uncharged misconduct, whether actually criminal or not. Spence v. State, 795 S.W.2d 743, 759 (Tex.Crim.App. 1990).
Under points of error four through nine, appellant also argues that the admission of the uncharged misconduct evidence violated his federal and state constitutional rights to due process of law and equal protection of the laws. Since these arguments were not raised below, however, they are not preserved for appellate review. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). Points of error numbers four through nine are overruled.
In his tenth point of error, appellant contends the trial court erred, at the punishment phase, in refusing to grant his motion for mistrial following the testimony of prosecution witness James McCowan concerning uncharged misconduct allegedly committed by Bethany. A careful reading of appellant's brief reveals, however, that he has not cited the pages in the record either where he moved for a mistrial or where his motion was denied. "Because the right to appellate review in this state extends only to complaints made in accordance with our published rules of appellate procedure--which require an appellant to specify the pages in the record where the alleged error can be found--we hold that . . . appellant's complaint is inadequately briefed and not preserved for our review. Tex. R. App. Proc. 74 and 210." Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992). Point of error number ten is overruled.
In point of error number eleven, appellant complains he "was denied a fair and impartial trial in that the foreperson of the jury . . . was selected without [his] knowledge that [the foreperson] knew and liked a State's witness, James McCowan." The record reflects, however, that this argument was not made in the trial court; therefore, it is not preserved for appellate review. Rezac v. State, 782 S.W.2d. at 870. Point of error number eleven is overruled.
In point of error number twelve, appellant argues "the trial court erred in denying [his] request for mistrial due to the antagonistic position in which [defense] counsel was placed with [respect to] the foreperson of the jury." Relevant to this point of error, the record reflects the following facts: When the State called prosecution witness McCowan to the stand during the punishment phase, the foreperson of the jury immediately asked to approach the bench. The request was granted, and the foreperson approached the bench and, outside the hearing of the jury, told the court that she (i.e., the foreperson) had been acquainted with McCowan while in high school but that she had had no contact with him for at least five years. She also stated that her prior acquaintance with McCowan would not affect her evaluation of his testimony. The jury was then sent to the jury room, and defense counsel, with the court's permission, questioned the foreperson about her relationship with McCowan. In response to this questioning, the foreperson stated that McCowan's face was "familiar" to her and that she had spoken to him often "in passing" in high school eight years earlier. Defense counsel then moved for a mistrial on the ground that his questioning of the foreperson had unavoidably placed him in an "antagonistic" position with respect to her. The trial court denied the motion.
We see no error. The record reflects that defense counsel's questioning of the jury foreperson was brief and polite. There is no reasonable probability that the questioning antagonized the foreperson or otherwise threatened appellant's right to an impartial jury. Point of error number twelve is overruled.
In point of error number thirteen, appellant contends the trial court erred "in allowing James McCowan to testify after the testimony of the [jury] foreman concerning her relationship with . . . McCowan." Appellant argues that because of the trial court's action, he was "denied [the] effective assistance of counsel and was denied due process by not being allowed to have a fair trial." But, again, this argument was not made in the trial court; therefore, it is not preserved for appellate review. Rezac v. State, 782 S.W.2d at 870. Point of error number thirteen is overruled.
Appellant argues in his fourteenth point of error that the trial court erred in denying his motion for mistrial after the prosecutor, in his final argument at the punishment phase, urged the jury to "disregard" the defense's psychiatric witnesses. With respect to this point of error, the record reflects that the trial court promptly instructed the jury not to consider the prosecutor's comment for any purpose, that appellant then moved for a mistrial, and that the motion was denied.
We will assume arguendo that the prosecutorial argument in question was improper. However, an instruction to disregard will cure such error unless the prosecutor's remark was so inflammatory that its prejudicial effect could not reasonably be overcome by such an instruction. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim.App. 1990). In order for improper argument to absolutely mandate reversal, it must be extreme or inject new and harmful facts into the record. Ibid. Neither was the case here. Point of error number fourteen is overruled.
In point of error number fifteen, appellant argues the trial court erred in denying his motion for mistrial after the prosecutor, in his final argument at the punishment phase, urged the jury to answer the punishment issues affirmatively because "there's no guarantee the defendant will stay in the penitentiary" if he were sentenced to life in prison. With respect to this point of error, the record reflects that the trial court promptly instructed the jury to disregard the prosecutor's remark, that appellant then moved for a mistrial, that the motion was denied, and that the prosecutor then explained to the jury that his previous comment had referred to the "possibility of escape."
Again, assuming arguendo that the prosecutor's remark was error, we see no necessity for a reversal. The prosecutor quickly explained to the jury that his comment had referred to the possibility of escape. Thus, since it is common knowledge in this state that prison inmates sometimes escape, we cannot say that the prosecutor's remark was extreme or injected new and harmful facts into the record. Point of error number fifteen is overruled.
Finally, in his sixteenth point of error, appellant argues that the prosecutor committed fundamental error when he used a Spanish aphorism during final argument at the punishment phase. Appellant argues specifically that he "has no means of determining whether the Spanish phrase was accurately transcribed, or [whether] the phrase was accurately interpreted." He complains further that he "has no means of knowing whether Spanish-speaking members of the jury were privy to information that other jury members, [he], and defense counsel were not privy to."
The relevant portion of the prosecutor's argument was as follows:
Ponchai Wilkerson made his choices. He chose the easy life, he became a crooked man. Insofar as what he did with Wilton Bethany, there's a saying in Spanish: Dime con quien andas y te dire lo que eres. "Tell me who you run around with, and I will tell you what you are."
Appellant did not object to the prosecutor's comment.
Assuming arguendo that the prosecutor's comment was improper, appellant, since he did not object at trial, is entitled to a reversal on appeal only if the comment was so prejudicial that an instruction to disregard could not have cured the harm. Harris v. State, 827 S.W.2d 949, 963 (Tex.Crim.App. 1992). Appellant has made no such showing. He has shown neither that the Spanish phrase was misinterpreted nor that any jurors even understood Spanish. Point of error number sixteen is overruled.
Having discerned no reversible error, we AFFIRM the judgment of the trial court.
CLINTON AND OVERSTREET, JJ., CONCUR IN THE RESULT.
Having discerned no reversible error, we AFFIRM the judgment of the trial court.
I respectfully dissent to the majority's disposition of appellant's second point of error. The United States Supreme Court has made it clear that the constitutionality of our State's capital sentencing scheme depends upon whether the jury has considered all the relevant evidence in making "an individualized assessment of the appropriateness of the death penalty." Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L. Ed. 2d 256 (1989). See also, Jurek v. Texas, 428 U.S. 262, 272, 276, 96 S. Ct. 2950, 2956, 2958, 49 L. Ed. 2d 929 (1976). In order for the jury to make such an individualized assessment it must consider the aggravating factors and the mitigating factors of both the offense and the particular defendant. In order to insure the jury fairly arrives at its decision, we established a nonexclusive list of eight factors, both aggravating and mitigating, with which to review the jury's assessment of the evidence supporting a sentence of death. Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App. 1987). Since Keeton, we have consistently applied these factors to review the sufficiency of the evidence to support an affirmative answer to the second punishment issue. See, Rousseau v. State, 855 S.W.2d 666, 684-685 and n. 25 (Tex.Cr.App. 1993), Boggess v. State, 855 S.W.2d 656, 661-663 (Tex.Cr.App. 1989), Johnson v. State, 853 S.W.2d 527, 532-533 (Tex.Cr.App. 1992), Vuong v. State, 830 S.W.2d 929 (Tex.Cr.App. 1992), and Valdez v. State, 776 S.W.2d 162, 166-167 (Tex.Cr.App. 1989). However, today, the majority, by focusing exclusively on the aggravating factors shirks "our responsibility in assuring the evenhanded application of the ultimate punishment. . . ." Horne v. State, 607 S.W.2d 556, 559 (Tex.Cr.App. 1980). Thus, the majority's cursory "review" of the second point of error threatens the wanton and freakish imposition of the death penalty constitutionally prohibited by the Eighth Amendment. See, Jurek, 428 U.S. at 276, 96 S.Ct. at 2958 (1976).
Appellant contends the evidence is insufficient to support an affirmative answer to the second punishment issue. In Ellason v. State, 815 S.W.2d 656, 658 (Tex.Cr.App. 1991), we stated:
In deciding whether there is sufficient evidence to support a jury's affirmative finding to the second special issue, that there is a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society, the evidence is to be viewed in the light most favorable to the finding to determine whether any rational trier of fact could have answered, beyond a reasonable doubt, special issue number two in the affirmative.
However, even with the foregoing in mind, we must remember that "death is a punishment different from all other sanctions in kind rather than degree." Woodson v. North Carolina, 428 U.S. 280, 303-304, 96 S.Ct. 2978, 2991, 49 L. Ed. 2d 944 (1976). Because of the uniqueness of the death penalty
fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally ...