Cantu v. State

• Decision Date: 03 June 1992
• Docket Number: No. 70739,70739
• Citation: 842 S.W.2d 667
• Parties: Domingo CANTU, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 667

842 S.W.2d 667

Domingo CANTU, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70739.

Court of Criminal Appeals of Texas En Banc.

June 3, 1992.

Rehearing Denied Sept. 30, 1992.

Gary A. Udashen (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty. and K.A. Drew, J. Keck, M. Gandy, A. Beach and J. Sims, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appellant, Domingo Cantu, Jr., was convicted of capital murder. Tex.Penal Code § 19.03(a)(2). At the punishment phase of appellant's trial, the jury answered affirmatively the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure. The trial judge then sentenced appellant to death as required by Article 37.071(e). Direct appeal to this court was then automatic. Tex.Code Crim.Proc. art. 37.071(h). We will affirm.

Appellant raises thirty-four points of error. We will summarize these points briefly. Point of error number nine challenges the sufficiency of the evidence to support the jury's affirmative answer to the second special issue. In point of error twenty-three, appellant asserts Article 37.071 is unconstitutional because it sets forth no standards for this Court to determine sufficiency of the punishment evidence. In points of error thirty-two, thirty-three and thirty-four, appellant objects to the manner in which the grand jury was constituted. In point of error thirty-one, appellant argues that his statement should not have been admitted into evidence. Points of error twenty-five through twenty-nine allege various error in the voir dire process. Point of error ten asserts Batson error. In point of error eleven, appellant alleges error stemming from the prosecutor's final argument. In point of error thirty, appellant asserts that the trial judge's failure to limit the definitions of "intentionally" and "knowingly" in the jury charge constituted reversible error. In point of error twenty-four, appellant alleges the entire capital punishment scheme is unconstitutional because it vests prosecutors with the sole discretion over which capital cases to prosecute. In points of error thirteen through eighteen, appellant asserts error in the trial court's failure to define the terms "deliberately," "criminal acts of violence," and "probability" in its charge to the jury. In points of error nineteen and twenty, appellant asserts that Article 37.071 is unconstitutional because it fails to guide the jury's consideration of unadjudicated extraneous offenses. In points of error twenty-one and twenty-two, appellant challenges the constitutionality of Article 37.071 on the ground it prohibits the trial court from informing the jury of the effect of its inability to come to an agreement on one of the special issues. Finally, points of error one through eight and twelve allege Penry error.

I.

In point of error number nine, appellant asserts that the evidence was insufficient to support the affirmative answer that the jury made to special issue number two, pursuant to Article 37.071(b) of the Texas Code of Criminal Procedure. ¹ Specifically, appellant contends that the nature of his prior criminal acts does not support the jury's conclusion that he constituted a continuing threat to society. Appellant further argues that the expert testimony presented by the State was not credible, as it was based upon hypothetical questions, not upon actual examinations of appellant. In addition, appellant argues that evidence that he was under the influence of alcohol and cocaine at the time of the offense militates against an affirmative finding on future dangerousness. We briefly summarize the relevant evidence adduced at appellant's trial, as viewed in the light most favorable to the verdict.

The record reflects that appellant, a twenty-year-old Hispanic male, attacked the victim, a ninety-four-year-old woman, in the front yard of the victim's Dallas home on June 25, 1988. Appellant was apprehended near the home of the victim within minutes of her death. Appellant's clothes were bloody, and the arresting officer testified that he could smell alcohol on appellant's breath. Medical evidence showed that the cause of the victim's death was multiple injuries to the head. There was also evidence that blood and hair samples taken from appellant's clothing were consistent with those of the victim. Finally, appellant gave a statement to the Dallas Police Department in which he admitted sexually assaulting the victim and beating her head against the concrete.

At the punishment phase of the trial, the State introduced evidence of appellant's extensive criminal record. Charlotte Harris, a school official, testified from her personal knowledge of two thefts committed by appellant when he was twelve-years old. Officer Judith Skibinski of the Dallas Police Department testified that she arrested appellant twice when he was fifteen or sixteen years old for taking money from coin operated machines. Keith Dilling and Officer Winifred Richardson of the Dallas Police Department testified concerning a burglary committed by appellant in 1983. Richardson testified that appellant was belligerent when she arrested him for this offense. Officer James Byerly of the Dallas Police Department testified to observing the appellant make extensive efforts to evade an arrest for the burglary of a vehicle occurring October 16, 1985. Byerly testified that appellant refused to obey orders to halt and fought with the police officer attempting to make the arrest. Appellant was placed on probation for this burglary. Subsequently this probation was revoked and appellant was sentenced to two years in prison. In addition, Officer David Vessels of the Dallas Police Department testified concerning an incident in which appellant violently resisted arrest. Also, there was evidence presented at trial that on the same day that appellant murdered the complainant, he had assaulted another woman at a bus stop, attempted to pull down her pants, and then stole her purse.

Other evidence was elicited concerning appellant's antisocial tendencies. For example, Dallas County Probation Officer Tammy Johnston testified about her experience as the probation officer assigned to appellant. She told of the numerous times that she had reported appellant's violations of the terms of his probation. She related that appellant failed to obtain employment, evaded drug rehabilitation, and, finally, fled from supervision completely. In addition the State presented expert testimony by Drs. Jeffrey Sigel and James Grigson, who testified that appellant had an "anti-social" personality and would constitute a continuing threat to society.

In addition to the evidence summarized above, the jury had the testimony of appellant himself, as well as the testimony of witnesses summoned by appellant. These witnesses included physician Dr. Terry Allen, social worker Steff Samuson, appellant's mother, and his girlfriend.

In resolving a sufficiency of the evidence issue, we must determine whether the evidence, when viewed in the light most favorable to the verdict, could lead a rational trier of fact to conclude beyond a reasonable doubt that the answer to special issue number two is "yes". Valdez v. State, 776 S.W.2d 162, 166 (Tex.Cr.App.1989). The jury is allowed to consider a number of factors in determining whether a defendant will be a continuing threat to society, including the following:

1. The circumstances of the capital offense 2. The calculated nature of the defendant's conduct;

3. The deliberateness exhibited in the crime's execution;

4. The existence and severity of the defendant's previous offenses;

5. Whether the defendant was acting under duress or the domination of another at the time of the crime;

6. The defendant's age and personal circumstances;

7. Psychiatric evidence; and

8. Character evidence.

Valdez, supra; Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987). We note also that in answering the special issues the jury is allowed to consider all the evidence which was admitted in both the guilt/innocence and punishment phases of the trial. Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986). In addition, the circumstances of the offense alone, if severe enough, can sustain an affirmative answer to special issue number two. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Cr.App.1986).

When sufficiency of the evidence is challenged, it is appropriate for this Court to examine other cases in which we have held that the State failed to present sufficient evidence to prove beyond a reasonable doubt that the defendant would be a continuing threat to society. Consequently, we have reviewed the cases cited in appellant's brief. See Smith v. State, 779 S.W.2d 417 (Tex.Cr.App.1989); Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988); Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987); Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987); Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982); Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1981). We note, however, that each case in which sufficiency of the evidence is challenged must be resolved on its own unique facts. Santana v. State, 714 S.W.2d 1.

We focus on the two cases on which appellant relies most heavily in his brief: Garcia and Keeton. In Garcia, supra, we held the evidence insufficient when the only evidence at punishment was the expert testimony of a psychologist who stated that it was his opinion that the defendant had an antisocial personality and would probably be dangerous and aggressive in the future. That situation is not analogous to this case, because in Garcia the psychologist's conclusions were based solely on thirty minutes of observing the defendant, after the defendant refused to talk with him. No tests were administered and no evidence was offered that the doctor knew anything about the defendant other than his half hour of observation. Nor did the...