Chimney v. State
| Decision Date | 03 November 1999 |
| Docket Number | No. 10-97-098-CR,10-97-098-CR |
| Citation | 6 S.W.3d 681 |
| Parties | (Tex.App.-Waco 1999) ANTONIO CHIMNEY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Before Chief Justice Davis Justice Vance and Justice Gray
O P I N I O N
The State indicted Antonio Chimney for capital murder. A jury convicted him of the lesser-included offense of murder and sentenced him to life imprisonment. See TEX. PEN. CODE ANN. 19.02(b)(1) (Vernon 1994). Chimney presents seven issues alleging the court erred by: (1) refusing to allow him to propound certain questions to the venire (two issues); (2) admitting evidence of his gang membership after the State failed to give adequate notice of its intent to offer such evidence; (3) overruling his motion to quash the indictment; (4) refusing to charge the jury on the law of transferred intent with respect to his claim of sudden passion; (5) failing to grant a mistrial after improper jury argument; and (6) admitting into evidence a cap worn by gang members because it was unfairly prejudicial.
The indictment alleges in pertinent part that on or about November 25, 1995 Chimney did: intentionally and knowingly cause the death of an individual, namely, CASSANDRA OWENS by SHOOTING HER WITH A FIREARM and did then and there cause the death of another individual, namely, TONJA BYRD by SHOOTING HER WITH A FIREARM and both murders were committed during the same criminal transaction.
The evidence reflects that Chimney and others went to a bar on the night in question. They became involved in an altercation and went outside. One of those accompanying Chimney began fighting with a Sterling Turner. Chimney retrieved a handgun from his car. He fired one shot into the air and then fired several shots into a crowd which had emerged from the bar.
Owens and Byrd were in the crowd. One of the shots hit Byrd in the chest, severing her aorta. She died at the scene. Another shot hit Owens in the upper chest and lodged near her spine. As a result, Owens experienced paralysis in both legs. She was transported to the Madisonville hospital and later transferred to a hospital in Bryan where she underwent surgery for her internal injuries. On December 5, Owen's physician released her from the hospital. Five days after her release, "she went into convulsions," started "shaking real bad," and had difficulty breathing. Her husband called 9-1-1, and an ambulance promptly arrived and transported her to the hospital. Owens suffered respiratory and cardiac arrest en route, and the emergency medical technicians could not revive her. Physicians in the emergency department could not resuscitate Owens, and she was pronounced dead within an hour after her arrival at the hospital.
The court charged the jury on capital murder and the lesser-included offenses of: (1) murder of Owens; (2) murder of Byrd; (3) manslaughter of Owens and Byrd; (4) manslaughter of Owens; and (5) manslaughter of Byrd. The jury found Chimney guilty of murdering only Byrd. After a two-day punishment phase, the jury sentenced Chimney to life imprisonment.
Chimney claims in his fourth issue that the court erred in overruling his motion to quash the indictment. He premised his motion on the State's failure to allege a culpable mental state in connection with the allegation of the Byrd murder the offense which elevated the Owens murder to a capital crime.
The Court of Criminal Appeals has held that a capital murder indictment need not allege a culpable mental state in connection with a second murder alleged to elevate the primary murder to the level of a capital murder. Dinkins v. State, 894 S.W.2d 330, 338-39 (Tex. Crim. App. 1995). Chimney attempts to distinguish Dinkins on the basis that Dinkins was convicted of both the primary murder (which included an allegation of a culpable mental state) and the second murder (which did not), whereas the jury in Chimney's case acquitted him of the primary murder and convicted him of the second murder (which does not include an allegation of a culpable mental state).
According to Chimney, "[t]he logic of Dinkins" "is fatally flawed" because under that analysis a person who has intentionally or knowingly caused the death of the primary victim can be convicted of capital murder under such an indictment "if he intentionally, knowingly, recklessly or with criminal negligence, (or even by accident) causes the death of [the second] victim." However, this argument goes to the correctness of the court's charge, not the propriety of the indictment. Thus, it has no bearing on whether the court should have quashed the indictment. See id. at 339.1
As the Court stated in Dinkins, an indictment "serves a notice function to the defendant," whereas "the function of the jury charge is to instruct the jury on the law applicable to the case." Id. The indictment in Chimney's case provided him sufficient notice because it alleged that he "intentionally and knowingly" caused Owens' death "by shooting her with a firearm" and "during the same criminal transaction" caused Byrd's death "by shooting her with a firearm." Dinkins, 894 S.W.2d at 338-39.
The indictment in this case is identical in all material respects to the one approved by the Court of Criminal Appeals in Dinkins. Therefore, the court did not err in overruling Chimney's motion to quash. Accordingly, we overrule Chimney's fourth issue.
In his first and second issues, Chimney contends the court erred by failing to allow him to propound certain questions to the venire. The first issue deals with the question, "In a hypothetical fact situation in a capital murder case if the victim was pregnant could you be fair and impartial?" The second issue concerns the question, "In a hypothetical fact situation in a murder case can you consider five years probation if the victim was pregnant?" The State responds that these issues should be overruled because they are multifarious; because they are inadequately briefed in that "[Chimney] never cites where in the record there was any proof of pregnancy"; and because the court did not abuse its discretion in disallowing the questions posed.
The former article 40.09(9) of the Code of Criminal Procedure required an appellant to "set forth separately each ground of error of which [he] desire[d] to complain on appeal." Act of May 31, 1981, 67th Leg., R.S., ch. 291, 108, 1981 Tex. Gen. Laws 761, 807, repealed by Act of May 27, 1985, 69th Leg., R.S., ch. 685, 1, 4, 1985 Tex. Gen. Laws 2472, 2472-73. Under this statute, the Court of Criminal Appeals rejected a point of error as "multifarious" when it complained of multiple actions of the trial court or when it presented multiple reasons a single action of the court was erroneous. See, e.g., Smith v. State, 676 S.W.2d 379, 383 (Tex. Crim. App. 1984) (); Morin v. State, 682 S.W.2d 265, 267 (Tex. Crim. App. 1983) ().
The Court adopted former appellate rule 74 in place of article 40.09. Rule 74(d) provided in pertinent part that an appellant's brief should contain a "statement of the points upon which an appeal is predicated." TEX. R. APP. P. 74(d), 49 Tex. B.J. 579 (Tex. Crim. App. 1986, amended 1997). Of rule 74(d) the Court said, "This Court has sought to prohibit the use of multifarious points of error by attorneys on appeal." Pyles v. State, 755 S.W.2d 98, 111 (Tex. Crim. App. 1988) (citing rule 74(d)). Thus, the Court construed rule 74(d) to prohibit multifarious points in the same manner as the former article 40.09(9). See 43 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE 43.294 (1995).
In 1997 however, the Court effectively repealed the former appellate rules and adopted rules which prescribe the form for briefs in a significantly different manner. Under appellate rule 38.1(e), TEX. R. APP. P. 38.1(e). Rule 38.9(b) provides:
If the court determines, either before or after submission, that the case has not been properly presented in the briefs, or that the law and authorities have not been properly cited in the briefs, the court may postpone submission, require additional briefing, and make any other order necessary for a satisfactory submission of the case.
Id. 38.9(b).
We conclude from these provisions that the current appellate rules do not permit a court to overrule an issue or point of error as multifarious. Accord B.D Holt Co. v. OCE, Inc., 971 S.W.2d 618, 619 (Tex. App.-San Antonio 1998, pet. denied); 43 DIX & DAWSON, supra 43.294 (Supp. 1999); but cf. Saldivar v. State, 980 S.W.2d 475, 487 n.3 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd); In re R.V., 977 S.W.2d 777, 782 (Tex. App.-Fort Worth 1998, no pet.); Martinez v. State, 969 S.W.2d 497, 499 (Tex. App.-Austin 1998, no pet.) (each recognizing points as "multifarious"). This conclusion finds further support in the fact that the most recent reported opinion of the Court of Criminal Appeals in which the Court recognized a point as multifarious was decided under former rule 74(d). See Dunn v. State, 951 S.W.2d 478, 480 (Tex. Crim. App. 1997). Accordingly, we reject the State's argument that Chimney's first and second issues should be overruled as multifarious.
The State also suggests that Chimney's first and second issues are inadequately briefed because Chimney does not provide a citation to the point in the record when evidence...
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