Green v. State

• Decision Date: 04 October 1995
• Docket Number: No. 71744,71744
• Citation: 912 S.W.2d 189
• Parties: Edward GREEN III, aka Peanut, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 189

912 S.W.2d 189

Edward GREEN III, aka Peanut, Appellant, v. The STATE of Texas, Appellee.

No. 71744.

Court of Criminal Appeals of Texas En Banc.

Oct. 4, 1995.

Janet Morrow, Houston, for appellant.

Dan McCrory, Assistant District Attorney, Houston, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

The offense is capital murder, and the sentence is death. Appellant raises sixteen points of error. We affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on August 31, 1992, the 18-year old appellant shot and killed two people when he attempted to rob them as they sat in their car at an intersection. Appellant later bragged about committing the offense and laughed at "the way the old man was shaking in the car after [appellant] shot him." Appellant later confessed to the police that he committed the offense.

At punishment, the State presented various witnesses who portrayed appellant as an "antisocial, dangerous criminal." For example, when he was fifteen, appellant sexually assaulted a 14-year-old girl. Appellant was incarcerated in the Texas Youth Commission (TYC) for this offense. Appellant engaged in violent behavior at TYC. TYC employees testified appellant hated women. Appellant was eventually paroled out of TYC.

Appellant's parole officers testified appellant was a "bad parolee." Appellant committed several offenses, including this offense, while he was on parole. Appellant expressed no remorse to the police when he confessed to this offense. Appellant attacked another prisoner with a shank while appellant was in the county jail awaiting trial for this offense. Appellant also engaged in other violent behavior in the county jail. The State presented other evidence to support an inference that appellant's upbringing did not lack in "advantages or opportunities," and he had the "tools to live a decent life."

Appellant presented the testimony of Campos who was a program therapist at a TYC sex offender treatment program. Campos was appellant's therapist in this program. Campos testified his initial assessment of appellant was that he appeared depressed and was shy, withdrawn, and very angry. Campos testified the origin of appellant's anger was, among other things, his being unable "to have a complete relationship with individuals, the lack of nurturing by the parents."

Campos attributed most of appellant's antisocial behavior to a "troubled childhood." Appellant's father was killed when appellant was eight or nine years old. Appellant's father was found hanging from a tree. Appellant's mother testified the killing was drug-related. Appellant's mother also testified appellant did not have much contact with his father since appellant's parents' divorce in 1979. Appellant's mother testified appellant's father physically abused her but not appellant. Appellant's mother was an alcoholic and a cocaine addict who spent much of her time away from the household. Appellant's primary caregivers were his aunt and grandmother.

Campos testified appellant began to show some progress from the TYC therapy sessions when appellant "started dealing with the death of his father." Campos testified that near the end of his treatment, appellant was still angry but he also had become "receptive to exploring his grief cycle" and was more receptive to seeing how a "normal family" functioned. Campos testified appellant was even beginning to show some signs of developing "victim empathy."

On cross-examination, Campos testified appellant failed his first exit interview from TYC. Campos testified appellant was disrespectful toward the staff and made derogatory comments about women during this interview.

"Q. Mr. Campos, in the exit interview that [appellant's counsel] was talking to you about, you had indicated that he--that [appellant], in his first exit interview, became angry, cursed, he was disrespectful to the staff and he made some derogatory statements towards women; is that correct?

"A. That's correct.

"Q. Did he make any specific statements about victims or--regarding his victim empathy?

"A. He stated, 'I really don't care about my victim. All women are bitches.' "

Campos testified any progress appellant made in the TYC program was a "function of the intense work that [he and appellant] did together."

"Q. I mean, it took a lot to get him to make any inroads into his problems, didn't it?

"A. Yes, it did, sir."

Campos also testified appellant is intelligent and is an "excellent manipulator." Campos testified appellant was referred to another doctor for follow-up sex offender treatment upon his release from TYC. However, appellant eventually stopped attending these treatment sessions. Campos also testified appellant considered himself a "victim." Campos agreed with the prosecutor this was a mechanism for shifting blame and not accepting responsibility for one's actions. Campos testified a person who perceives himself as a "victim" thinks people are out to get him and he is a "poor little child."

In point of error one, appellant asserts the trial court violated the Federal and State Constitutions and Article 36.28, V.A.C.C.P., in responding to a jury note at punishment in a manner that was "unrealistic, unnecessarily restrictive and highly prejudicial." In point of error two, appellant asserts the trial court's response to the jury note "improperly gave an instruction on a factual matter" in violation of the United States and State Constitutions, and Articles 36.14 and 36.15, V.A.C.C.P. In point of error three, appellant asserts the trial court's response to the jury note was an improper comment on the weight of the evidence in violation of Article 38.05, V.A.C.C.P.

The record reflects that as the jury was deliberating on the punishment issues, it sent out several notes. The jury sent a note requesting definitions of "personal moral culpability" and "sufficient mitigating circumstances." The word "sufficient" was circled. The trial court instructed the jury to refer to the court's charge. The jury later sent a note saying it was deadlocked on special issue two on mitigation and asking what to do next. The trial court instructed the jury to continue its deliberations. The jury subsequently sent another note asking for a "copy of [Campos'] testimony." The trial court responded in writing that:

"the law provides that if the jury disagree as to the statement of any witness, they may, upon application to the Court, have read to them from the court reporter's notes that part of a witness' testimony on the particular part in dispute, and no other."

The jury sent out another note confirming it was in "dispute as to whether or not [Campos] "stated [appellant] had 'emotional problems,' " and asking whether Campos "state[d] [appellant] had 'emotional problems.' " The jury's note had the term "emotional problems" in quotation marks. The trial court responded in writing that:

"[Campos] never used the term 'emotional problems'!" The trial court's response also had the term "emotional problems" in quotation marks. The jury returned its verdict the next day.

Appellant claims the trial court's response that Campos never used the term "emotional problems" was improper. However, the record does not reflect appellant objected to the trial court's response. Therefore, he presents nothing for review. See Tex.R.App.Proc. 52(a); Marin v. State, 851 S.W.2d 275, 279 (Tex.Cr.App.1993); Campbell v. State, 545 S.W.2d 791, 796 (Tex.Cr.App.1977).

Appellant apparently argues he had no opportunity to object because trial counsel "may not have known of the note and response at all, as far as the record shows." This Court does not decide cases based on speculation about matters not shown in the record. See Tex.R.App.Proc. 50(d). In the absence of a showing to the contrary in the record, we presume the trial court's response was in open court and in appellant's presence. See Article 36.27, V.A.C.C.P.; Smith v. State, 513 S.W.2d 823, 829 (Tex.Cr.App.1974). Therefore, we also presume appellant had an opportunity to object.

Appellant also argues the trial court's response "egregiously harmed" him under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984) (op. on reh'g). See Daniell v. State, 848 S.W.2d 145, 147 (Tex.Cr.App.1993) (when the trial court responds substantively to a jury question during deliberations, that communication essentially amounts to an additional or supplemental jury instruction). Appellant argues the trial court's response "egregiously harmed" him because it was inconsistent with his defense and the whole tenor of Campos' testimony that appellant did have "emotional problems." He claims the trial court's response, especially the exclamation point at the end of it, was a comment on the weight of the evidence because it "emphasized to the jury that in the court's opinion the testimony did not support a conclusion that Appellant suffered emotional problems." Appellant also argues the trial court's response had the effect of instructing the jury not to consider any aspects of Campos' testimony as mitigating which rendered the punishment hearing fundamentally unfair.

Since we presume the trial court's response was in open court and in appellant's presence, we also presume appellant agreed to it. Therefore, appellant waived any error, and the Almanza standard is inapplicable. See Marin, 851 S.W.2d at 279; Article 1.14, V.A.C.C.P.

Assuming the applicability of the Almanza standard, we find no "egregious harm." See id.; Campbell, 545 S.W.2d at 796. The trial court responded to a narrow and straightforward jury question with a narrow and straightforward answer that was responsive to the question asked. The jury asked if Campos "stated " appellant had "emotional problems" with this term in quotation marks, and the trial court responded Campos never used the term "emotional problems" with this term...