Broussard v. State

• Decision Date: 25 October 1995
• Docket Number: No. 71745,71745
• Citation: 910 S.W.2d 952
• Parties: Windell BROUSSARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 952

910 S.W.2d 952

Windell BROUSSARD, Appellant, v. The STATE of Texas, Appellee.

No. 71745.

Court of Criminal Appeals of Texas En Banc.

Oct. 25, 1995.

Rehearing Denied Dec. 6, 1995.

James A. Delee, Port Arthur, for appellant.

John R. DeWitt, Assistant District Attorney, Beaumont, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, Judge.

In June of 1993, appellant was convicted of capital murder, namely, the double murder of Dianna Broussard and her son, Corey Harris, which was committed in April 1992. The trial court submitted to the jury the special issues set out in Article 37.071(b), of the Texas Code of Criminal Procedure. ¹ In accordance with the jury's answers to those issues, the trial court assessed the appellant's punishment at death. Article 37.071(h) provides direct appeal to this Court. Appellant raises twelve points of error. We affirm.

In point of error nine appellant contends that the evidence was insufficient to sustain a verdict of guilty to capital murder. He claims Tocarra Harris, the primary witness for the State, "had her mind filled with the idea that her stepfather was the perpetrator." He speculates that the nine year old witness' testimony was "programmed," but offers no evidence to support this claim. He further describes other unfavorable evidence as a mere "smattering of background and periphery items."

A sufficiency review requires that, while viewing the evidence in the light most favorable to the verdict, we ask whether any rational trier of fact could have found beyond a reasonable doubt all of the elements being challenged. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993).

Tocarra Harris, appellant's stepdaughter, testified that she was sleeping in the same bed with her mother, Dianna Broussard, and her brother, Corey Harris, when she awoke to the sound of screaming. She said the screams were coming from her mother and brother and that they were being stabbed by appellant. Appellant then began to stab Tocarra. She heard her mother and brother scream "Windell, Stop." Tocarra also testified that one side of her assailant's face was illuminated by the bathroom light. She recognized the face as Windell Broussard. She said he continued to stab her as her mother and brother ran out of the house.

Dianna Broussard's mother testified that Dianna had separated from appellant and was about to file for divorce. She said Dianna left appellant because he beat her. Dianna's uncle, Elton Harris, testified that about a week before the killings he witnessed an argument between Dianna and appellant's girlfriend. When appellant arrived on the scene, Dianna told him to leave. Appellant's response was that "before he would leave her he'd rather see her dead before anybody else would have her again." Elton Harris also testified that at Dianna's request, he had installed a new padlock on her door, that she had lost the key, and that one week before the murders he saw appellant in her house.

Appellant's aunt testified that at about 11:00 or 11:30 p.m. on the night of the murders appellant came home wearing only his underwear. She said he "rushed in--like something happened" and jumped up and down saying "I did something." When she asked him, "Did you kill somebody?", he said, "Yes. I killed somebody."

Appellant's friend Cornell Bush testified that appellant asked him to drive him to his wife's house on the night of the murders. He said something was "going on" between them and that appellant "wanted to see if she was with some guy or something like that." On the way there, appellant tried to persuade Bush to lend him his car. After driving past the victims' house, Bush and appellant returned to Bush's home. He said appellant left there at about 9:00 or 9:30.

An I.D. technician with the Port Arthur Police testified that the victims were found lying in the yard, and that there was blood all over the house. A pack of Kool cigarettes, the brand appellant smoked, was found on the bed along with the missing key to Dianna Harris' padlock. A cap bearing the logo of appellant's employer was also found at the scene. The pathologist who examined the bodies found that each victim had died from a stab wound to the heart. He testified that they could have lived for 5-10 minutes after the wounds were inflicted. Officer Jimmy Clark testified that when he arrived at the scene around 11:00 or 11:30, "a little bloody girl" (Tocarra Harris) was sitting just inside the door.

Given the eyewitness testimony of the one surviving victim, and the large amount of evidence corroborating her account of the events leading to this trial, we find that a rational trier of fact could conclude beyond a reasonable doubt that appellant killed Dianna Broussard and Corey Harris. Therefore, point of error nine is overruled.

In point of error ten appellant challenges the sufficiency of the evidence to sustain a sentence of death. Appellant addresses both punishment issues in this single point.

Appellant complains first that the evidence is insufficient to support the jury's affirmative answer to the future dangerousness issue. Once again, when conducting a review of the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have affirmatively answered the punishment issue beyond a reasonable doubt. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Valdez v. State, 776 S.W.2d 162, 166 (Tex.Crim.App.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1989).

A jury may consider, but is not limited to, the following factors when evaluating the sufficiency of the evidence to support an affirmative answer to the second punishment issue:

1. the circumstances of the capital offense, including the defendant's state of mind and whether he was working alone or with other parties;

2. the calculated nature of the defendant's acts;

3. the forethought and deliberateness exhibited by the crime's execution;

4. the existence of a prior criminal record and the severity of the prior crimes;

5. the defendant's age and personal circumstances at the time of the commission of the offense;

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

7. psychiatric evidence; and,

8. character evidence.

Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Crim.App.1995); Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). No one factor is dispositive, and the jury's affirmative answer may withstand a sufficiency challenge notwithstanding the lack of evidence relating to one or more of these factors. Dinkins v. State, 894 at 358; Vuong v. State, 830 S.W.2d 929, 935 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992).

Appellant's threatening words, his apparent secretion of the key to his wife's padlock, and his behavior shortly before the murders took place show that the crime was planned. Entering the victims' home at night, appellant carried out his intention to "see [Dianna] dead" by stabbing not only Dianna, but her two children as they lay in bed asleep. Appellant conceived and carried out the plan completely on his own.

The evidence also reveals a long history of criminal violence. In 1979, after pleading guilty to an indictment charging him with aggravated kidnapping and aggravated robbery, appellant was convicted of kidnapping and sentenced to 10 years confinement. In 1987, on a plea bargain to a two count indictment charging him with aggravated kidnapping and aggravated assault, appellant was convicted of Class A assault and sentenced to 180 days. Appellant was convicted again in 1990 for the offense of robbery and sentenced to 9 1/2 years. In 1991, he received a sentence of 20 days on misdemeanor assault for hitting Dianna Broussard in the face with his fist. Three Port Arthur police officers testified that appellant's reputation for being peaceful and law abiding was bad. Dianna Harris' mother testified that Dianna was seeking a divorce because appellant beat her. For these reasons, we find that the evidence supports the jury's finding of future dangerousness.

Appellant's second complaint in point of error ten concerns the jury's negative finding on the issue of mitigating circumstances. Appellant claims the testimony of several witnesses, including his former supervisor and his supervisor's wife, a former co-worker, and appellant's sister, demonstrates that a life sentence was warranted. These witnesses offered their opinion that appellant was a decent, hardworking, and trustworthy person. Appellant also called several prison guards who testified that, to their knowledge, appellant had not been a troublemaker in prison.

Because the weighing of "mitigating evidence" is a subjective determination undertaken by each individual juror, this Court will not review such evidence for sufficiency. Colella v. State, 908 S.W.2d 437 at 448 (Tex.Crim.App.1995). Point of error ten is overruled.

In point of error eight appellant avers that the trial court erred in overruling his objection to the jury's charge on guilt/innocence. Specifically, appellant argues that he was entitled to a charge on the lesser included offense of murder.

In order to be entitled to a charge on a lesser included offense, a defendant must show first that the lesser offense is included within the proof necessary to establish the offense charged; and second, that some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.199...