Flores v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MALONEY; CLINTON
• Citation: Flores v. State, 871 S.W.2d 714 (Tex. Crim. App. 1993)
• Decision Date: 08 December 1993
• Docket Number: No. 71147,71147
• Parties: Miguel Angel FLORES, Appellant, v. The STATE of Texas, Appellee.

Page 714

871 S.W.2d 714

Miguel Angel FLORES, Appellant, v. The STATE of Texas, Appellee.

No. 71147.

Court of Criminal Appeals of Texas En Banc.

Dec. 8, 1993.

Rehearing Denied March 9, 1994.

Gene Storrs, Amarillo, for appellant.

Stephen F. Cross, Dist. Atty., and Roy Carper, Asst. Dist. Atty., Borger, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MALONEY, Judge.

Appellant was convicted of capital murder. TEX.PENAL CODE ANN. § 19.03(a)(2). After the jury returned affirmative findings to the two special issues submitted under TEX. CODE CRIM.PROC. ANN. art. 37.071, the trial court imposed the penalty of death. This case is before us on direct appeal. Because appellant challenges the sufficiency of the evidence to support the jury's affirmative answer to the second special issue, we will briefly review the facts in a light most favorable to the verdict.

In the early morning hours of June 29, 1989, the body of the deceased was found in her automobile. The deceased had been stabbed ten times in the chest and back. The immediate cause of death was a puncture wound to the heart. Upon receiving word that he was wanted for questioning, appellant turned himself in to law enforcement authorities. He did this on the morning the body was found. Appellant gave four tape recorded custodial statements.

At the time of her death, the deceased, a college student, was working during her summer vacation at a video rental store in Borger. After appellant rented a video tape from the store, he returned shortly before closing time, and waited for the deceased near her automobile. When the deceased exited the store, appellant forced her into her automobile, which he then drove to a remote location outside of town where he sexually assaulted her. ¹ After the assault appellant drove himself and the deceased to the city dump site. There he was seen by the deceased's father, who was looking for the deceased because she had not come home after work. Although the deceased's father attempted to apprehend appellant, appellant successfully escaped and drove back to town. According to his statements, appellant parked the automobile, and he and the deceased sat without talking for about ten minutes. Appellant stabbed the deceased with a pocket knife when she began to scream.

In point of error nine, appellant claims the evidence is insufficient to support the jury's affirmative answer to the second special issue. ² In resolving appellant's contention we look at all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find all of the elements of article 37.071(b)(2) beyond a reasonable doubt. Black v. State, 816 S.W.2d 350, 352 (Tex.Crim.App.1991). "The jury is entitled to consider all the evidence admitted at both phases of trial when deliberating on the special issues." Id. We have frequently stated that "the circumstances of the offense, if severe enough, may alone be sufficient to support an affirmative answer" to the second special issue. Id. at 355; Roney v. State, 632 S.W.2d 598, 601 (Tex.Crim.App.1982). If the facts of the crime itself are not sufficient to support an affirmative finding, "we look for other evidence to support the jury's finding, such as psychiatric evidence, character evidence, prior criminal record, prior extraneous offenses ... or state of mind at the time of the offense." Kunkle v. State, 771 S.W.2d 435, 449 (Tex.Crim.App.1986).

The State maintains that the facts of the offense, in addition to other evidence introduced at trial, support the jury's affirmative response to the second special issue. The State argues that several items seized from the car driven by appellant on the night of the murder, including a brass knuckles-like implement called a "sap glove," a club, and several bullets, show a propensity for violence. In addition, the State's psychiatrist, Dr. Clay Griffith testified, based upon a hypothetical substantially tracking the facts of the instant case, that appellant would be a future danger to society. When asked to give the basis for his opinion, Griffith testified that "this very vicious hideous murder was unprovoked," and that "people with this type of personality who commit this type of murder are going to be violent again." Griffith also noted that appellant going to sleep following the offense indicated a lack of conscience. There was no evidence, Griffith testified, from which he could deduce any remorse or concern for the victim on the part of appellant. Griffin stated that the lack of remorse "further adds to this type of personality description, people without conscience. Things don't bother them. They act for themselves to please themselves no matter what the cost to property or life is." Finally, Griffith testified that the various items in the automobile driven by appellant constituted further evidence that "violence is going to occur or maybe has occurred and we don't know about it.... Sooner or later he's going to be violent. You can't get worse than what he did except in terms of numbers."

Considering that the State's case at punishment, to some extent, rested upon Dr. Griffith's testimony, we conducted a review of cases in which we held the evidence was insufficient to support the jury's affirmative answer to the second special issue. Although we have repeatedly recognized that psychiatric testimony "is not essential to support an affirmative finding to the issue of future dangerousness[,]" Huffman v. State, 746 S.W.2d 212, 224 (Tex.Crim.App.1988), it is equally true that we have not found the evidence in any case to be insufficient where the State offered psychiatric testimony that the defendant would constitute a continuing danger to society. ³ See, e.g., Ellason v. State, 815 S.W.2d 656, 664-65 (Tex.Crim.App.1991) (where evidence held insufficient, the only psychological testimony was favorable to defendant); Smith v. State, 779 S.W.2d 417, 421-22 (Tex.Crim.App.1989) (where evidence insufficient, State failed to produce psychiatric testimony or evidence of prior criminal record or history of violence, and the facts showed that defendant did not plan murder with forethought); Huffman, 746 S.W.2d at 225 (where evidence insufficient, State offered no psychiatric or reputation testimony, or evidence of prior violent crimes); Marras v. State, 741 S.W.2d 395 (Tex.Crim.App.1987) (where evidence held insufficient, there was no psychiatric testimony and jury unable to consider prior felony offenses); Beltran v. State, 728 S.W.2d 382, 388-90 (Tex.Crim.App.1987) (where evidence held insufficient, there was no psychiatric testimony, prior criminal convictions were not violent in nature and only one witness testified to bad character); Keeton v. State, 724 S.W.2d 58, 64 (Tex.Crim.App.1987) (where evidence insufficient, there was no psychiatric or character testimony and no evidence or past violent acts); Roney, 632 S.W.2d at 603 (where evidence held insufficient there was no psychiatric testimony, no character evidence and no prior criminal record, and defendant cooperated with police); Wallace v. State, 618 S.W.2d 67, 69 (Tex.Crim.App.1981) (where evidence insufficient, there was no evidence of prior convictions, no character evidence and no psychiatric testimony); Brasfield v. State, 600 S.W.2d 288, 293 (Tex.Crim.App.1980) (where evidence held insufficient, there was no evidence of prior criminal record or bad acts, no psychiatric evidence or character evidence), overruled on other grounds, Janecka v. State, 739 S.W.2d 813, 819 (Tex.Crim.App.1987); Warren v. State, 562 S.W.2d 474, 476-77 (Tex.Crim.App.1978) (where evidence held insufficient, there was no psychiatric testimony and prior criminal acts were not violent). Moreover, we have held the evidence sufficient on the second issue where the State's case at punishment rested almost exclusively on psychiatric testimony, see Moore v. State, 542 S.W.2d 664, 676 (Tex.Crim.App.1976), cert. denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977), overruled on other grounds, Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) (evidence sufficient on second issue in light of facts of the offense--rape, robbery and shooting of victim--and psychiatric testimony); Smith v. State, 540 S.W.2d 693 (Tex.Crim.App.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977) (evidence sufficient on second issue based on facts of offense--killing a grocery store operator in course of robbery--, a prior marijuana conviction and psychiatric testimony that defendant displayed no apparent remorse and that his future conduct would not change). ⁴

We conclude that the evidence of future dangerousness introduced by the State was sufficient to convince a rational trier of fact that appellant was a continuing threat to society. Black, supra. The abduction of the victim in the instant offense was committed with certain forethought and deliberation, being contemplated by appellant for over an hour. After renting the video, appellant went home and watched part of the movie before returning to the store parking lot to wait for the victim's departure from work. In addition, appellant had the opportunity after committing the rape to release the victim, but chose not to. When sighted by the victim's father prior to the murder, appellant fled with the victim. Further, after stabbing the victim repeatedly in the chest and back with his pocket knife, appellant went to sleep in another car. Although appellant turned himself in voluntarily the following day, he twice attempted to blame other persons for the offense. ⁵ Appellant ultimately confessed that he was not acting under the duress or domination of a third party. The State offered psychiatric testimony that appellant would be a continuing threat to society. Pointing to appellant's apparent lack of remorse, Dr. Griffith testified that such a person lacked social conscience and would...