Buntion v. State

• Decision Date: 27 January 2016
• Docket Number: NO. AP–76,769,AP–76,769
• Parties: Carl Wayne Buntion, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

482 S.W.3d 58

Carl Wayne Buntion, Appellant

v.The State of Texas

NO. AP–76,769

Court of Criminal Appeals of Texas.

DELIVERED: January 27, 2016

Patrick F. McCann, Houston, for Appellant.

Clinton Morgan, Assistant District Attorney, Houston, Lisa C. McMinn, State's Attorney, Austin, for the State.

OPINION

Richardson

, J., delivered the opinion for a unanimous Court.

In January 1991, a jury convicted appellant of capital murder for an offense committed in June 1990. TEX. PENAL CODE § 19.03(a)(1)

(West 1990). Based upon the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. TEX.CODE CRIM. PROC. art. 37.071, § 2(g) (West 1990).¹ His conviction and sentence were affirmed on direct appeal. Buntion v. State, No. AP–71,238 (Tex.Crim.App. May 31, 1995) (mem. op., not designated for publication). Appellant's initial state application for habeas corpus relief was denied. Ex parte Buntion, No. WR–22,548–02 (Tex. Crim. App. Nov. 5, 2003) (per curiam order, not designated for publication). Appellant's subsequent application was granted, and the case was remanded for a new punishment hearing. Ex parte Buntion, No. AP–76,236, 2009 WL 3154909 (Tex.Crim.App. Sept. 30, 2009) (mem. op., not designated for publication).

The trial court held a new punishment hearing in February 2012. Based on the jury's answers to the special issues, the trial judge sentenced appellant to death. Art. 37.0711, § 3(g). Direct appeal to this Court is automatic. Art. 37.0711, § 3(j). Appellant raises twenty-seven points of error. After reviewing appellant's points of error, we find them to be without merit. Consequently, we affirm the trial court's sentence of death.

SUFFICIENCY OF THE EVIDENCE

In point of error twenty-seven, appellant asserts that the evidence was insufficient to sustain the jury's affirmative answer to the future dangerousness special issue. Appellant states that, like the defendant in Berry v. State, 233 S.W.3d 847 (Tex. Crim. App. 2007)

, there is no evidence that he poses a future danger while in prison. He argues that, given his age, the only relevant society is prison society. He notes that his criminal record, though extensive, dates from the 1980s. Appellant states that he is now in his mid-sixties, and if he received a life sentence, he would not even be eligible for a parole review for many years. He avers that he would likely die of natural causes while in prison before reaching his first parole review date. Appellant points out that he has been "quiet and relatively complacent" since he was convicted of the instant offense over twenty years ago, and "he is now an old man" in poor health. He alleges that the State presented no psychological, opinion, or reputation evidence that would permit a rational juror to conclude that he is likely to commit future acts of violence. Therefore, appellant reasons, the evidence is not sufficient to allow a rational juror to determine, beyond a reasonable doubt, that there is a probability that he will commit criminal acts of violence and constitute a continuing threat to society.

We view all of the evidence in the light most favorable to the jury's finding and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the future dangerousness issue was "yes." Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010)

. A jury may consider a variety of factors when determining whether a defendant will pose a continuing threat to society. Freeman v. State, 340 S.W.3d 717, 725 (Tex. Crim. App. 2011) ; Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).

The facts of the offense alone may be sufficient to sustain the jury's finding of future dangerousness. Fuller v. State, 253 S.W.3d 220, 231–32 (Tex. Crim. App. 2008)

. In this case, the facts of appellant's offense alone were sufficient to establish appellant's future dangerousness. His victim, James Irby, was a motorcycle police officer who made a traffic stop of a vehicle in which appellant was a passenger. While Irby and the vehicle's driver were standing and talking next to the vehicle, appellant exited the vehicle carrying a loaded gun. Appellant shot Irby once in the head, causing him to fall to the pavement. While Irby was lying on the ground, appellant shot him twice in the back.

Appellant fled the scene on foot and committed several violent offenses during his efforts to evade capture. Appellant attempted to steal a car that was waiting at a stop sign by standing in front of the vehicle and pointing a gun at the driver. As the driver began to back the car away, appellant fired a shot into the windshield. The bullet shattered the windshield, sending broken glass into the driver's eyes, and struck the passenger in the arm. When a peace officer who had come upon the scene commanded appellant to halt, appellant shot at the officer and ran down the street.

Appellant then walked into a nearby warehouse, where he pointed his gun at an employee, who ran outside. Appellant chased a second employee into the parking area. A supervisor who was pulling into the driveway saw appellant and confronted him. Appellant pointed his gun at the supervisor's face and directed him to put his hands up, give appellant his wallet, and get on the ground. Appellant then attempted to steal the supervisor's vehicle. However, when appellant could not operate the standard transmission, he abandoned the vehicle and ran inside a building, where a responding police officer arrested him.

A jury may also infer a defendant's future dangerousness from evidence showing a lack of remorse. See Estrada v. State, 313 S.W.3d 274, 284–85 (Tex. Crim. App. 2010)

(citing Trevino v. State, 991 S.W.2d 849, 853–54 (Tex. Crim. App. 1999) ). Here, appellant's conduct immediately after his arrest indicated that he lacked remorse for the offense. He refused to give the arresting officer his name or any other information and claimed that he was diabetic and paralyzed. While in the police station following his arrest, appellant was uncooperative and appeared to be "mad at everybody." The jury also heard evidence confirming appellant's continued lack of remorse. During a 2009 recorded interview with a television reporter following the reversal of his initial sentence, appellant stated that his conduct in committing the offense was justified because he had no doubt that the victim was going to shoot him. Appellant also stated that if he were faced with the same situation today, he would do it again.

Appellant's prior criminal record also supported the finding that appellant posed a continuing threat to society. Se Solomon v. State, 49 S.W.3d 356, 363 (Tex. Crim. App. 2001)

(noting that the existence of a prior criminal record and the severity of the prior crimes is a factor to consider in determining whether a defendant constitutes a continuing threat to society). Appellant had thirteen prior felony convictions, many of which involved assaulting other people. Most notably, appellant was convicted in 1965 of "assault to murder" an Alabama peace officer. Further, appellant committed the instant offense a little over a month after he was released to parole while serving a sentence for the offense of sexual assault of a child. See id. at 363–64 (stating that committing an offense while on parole has some tendency to show future dangerousness).

In addition, appellant committed numerous unadjudicated extraneous offenses and bad acts, both in and out of prison. During a previous term of imprisonment, appellant was found to be in possession of a shank. While on a prison furlough, appellant used his brother's birth certificate to obtain a visit with his ex-wife, who was in jail. When a jail official discovered appellant's true identity and the fact that he was on a prison furlough, the official arrested appellant and returned him to prison. Approximately a week before the instant offense, appellant showed an acquaintance a gun. He told her that he always carried it because he would rather kill than go back to prison. While in jail for the instant offense, appellant threatened other detainees who asked him why he was there. Appellant said that he would kill them "like [he] killed the cop" if they did not leave him alone.

Additional evidence indicated that appellant's character for violence had not changed during his time in prison. See, e.g., Coble v. State, 330 S.W.3d 253, 269 (Tex. Crim. App. 2010)

. While in jail awaiting the punishment retrial, appellant wrote letters to his brother, Bobby. The letters contained language from which a jury could reasonably infer that appellant remained a continuing threat to society. For example, in a July 2011 letter, appellant stated that he was glad that he would never be released from prison because he would "hate to think about what [he would] do to certain people that have screwed [him] around." In an August 2011 letter, appellant advised Bobby that if the district attorney questioned Bobby about Bobby's previous criminal record, Bobby should just say that the district attorney "made [Bobby] what [he was]" by sending Bobby to prison on his first offense instead of giving him probation. "If they create a ‘monster,’ they should not complain when it feeds (on society.) right? [sic] Right."

Dr. Mark Vigen, appellant's mental health expert, acknowledged that appellant had served "a lifetime of prior prison sentences" before he committed the instant offense. Vigen acknowledged that appellant's criminal history and history of imprisonment could increase the risk for prison violence. Further, the jury had heard evidence that appellant was a member of the Aryan Brotherhood of Texas prison gang. Vigen testified that membership in a prison gang is associated with an increased probability of prison violence. Vigen was also aware that appellant was in his mid-forties...