Chavez v. State
| Decision Date | 25 September 1997 |
| Docket Number | No. 08-95-00254-CR,08-95-00254-CR |
| Parties | Gabriel Jaime CHAVEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Nick Martinez, El Paso, for Appellant.
Jaime E. Esparza, District Attorney, El Paso, for Appellee.
Before BARAJAS, C.J., and LARSEN and McCLURE, JJ.
This is an appeal from a jury conviction for the offense of murder. The jury assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division and a fine of $10,000. We affirm the judgment of the trial court.
In response to the State's notice of its intention to introduce extraneous offenses, Appellant filed a motion to exclude that evidence. Prior to trial, the court conducted a hearing to determine the admissibility of the extraneous offenses. The State presented evidence that Appellant was found in possession of 143.7 pounds of marijuana at the Sierra Blanca checkpoint in Sierra Blanca, Texas. Appellant's statement acknowledging the commission of this offense was placed in evidence.
The State also presented evidence that Appellant was involved in an incident that resulted in the attempted murder of one individual and the commission of aggravated assault upon another. The court ruled that offenses of attempted murder and aggravated assault would be admissible at the punishment stage of trial but reserved its ruling regarding the extraneous offense of possession of marijuana until a search and seizure question was resolved. At the punishment stage of trial, a hearing was held outside the presence of the jury and the court ruled that the extraneous offense involving the possession of marijuana would be admissible at the punishment stage of trial. Evidence of the extraneous offenses of attempted murder, aggravated assault, and possession of marijuana were likewise presented to the jury.
During argument at the punishment stage of trial, the following exchange occurred:
Appellant did not testify at either stage of trial.
In Point of Error No. One, Appellant asserts that TEX.CODE CRIM.PROC.ANN. art. 37.07 § 3(a)(Vernon Supp.1997) unconstitutionally delegates legislative power to the judiciary by authorizing the consideration of unadjudicated extraneous offenses when assessing punishment. 1 Specifically, Appellant argues that the phrase "as to any matter the court deems relevant to sentencing" in article 37.07 § 3(a) confers on trial courts unfettered, standardless discretion to admit evidence at the punishment stage of trial. Appellant's sole citation in support of this proposition is a statement in the concurring opinion of Judge Clinton in Beasley v. State, 902 S.W.2d 452, 460 (Tex.Crim.App.1995). Appellant makes no effort to either apply the facts of this case to that authority nor does he show how the complained-of statute is unconstitutional as applied to him. Accordingly, the constitutional issue is not properly before us. Vuong v. State, 830 S.W.2d 929, 941 (Tex.Crim.App.1992); Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987); Smith v. State, 899 S.W.2d 31, 34 (Tex.App.--Austin 1995, pet. ref'd). Appellant's Point of Error No. One is overruled.
In Point of Error No. Two, Appellant contends that the state utilized impermissible jury argument at the punishment stage of trial. The State may not allude to a defendant's non-testimonial demeanor as being indicative of guilt absent any evidence in the record of such behavior. Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App.1986). Furthermore, an argument urging the jury to note the non-testimonial demeanor of a defendant as being indicative of lack of remorse or contrition can very well constitute a comment on the accused's failure to testify. Dickinson v. State, 685 S.W.2d 320, 324 (Tex.Crim.App.1984). However, an instruction by the...
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State v. Mills, 30031.
...defendant's lack of remorse was improper but any harm was cured by trial court's admonition to disregard reference); and Chavez v. State, 960 S.W.2d 829 (Tex.App.1997) (holding that any error in comment on defendant's nontestimonial demeanor as showing lack of remorse was cured where court ......
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Mungaray v. State, No. 08-01-00505-CR (Tex. App. 3/24/2004)
...sufficient to cure any error which may have occurred. See Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Chavez v. State, 960 S.W.2d 829, 830 (Tex. App.—El Paso 1997, no pet.); Bower v. State, 769 S.W.2d 887, 907 (Tex. Crim. App. 1989); Hawkins v. State, 660 S.W.2d 65, 79-80 ......
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Faison v. State
...sufficient to cure any error which may have occurred. See Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Chavez v. State, 960 S.W.2d 829, 830 (Tex. App. El Paso 1997, no pet.). Only in the most blatant examples will the trial court's instructions to disregard fail to cure any......
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