Hughes v. State

• Decision Date: 09 December 1992
• Docket Number: No. 70901,70901
• Parties: Preston HUGHES, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 142

878 S.W.2d 142

Preston HUGHES, III, Appellant, v. The STATE of Texas, Appellee.

No. 70901.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 9, 1992.

Opinion Granting Rehearing June 23, 1993.

Rehearing Denied Nov. 24, 1993.

Certiorari Denied June 6, 1994.

See 114 S.Ct. 2184.

Joseph J. Finkel, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Linda A. West and Charles A. Noll, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code § 19.03(a)(6). Upon the jury's affirmative answers to the two issues submitted at punishment, the trial judge sentenced appellant to death. See Art. 37.071(b)(1), (b)(2), and (e), V.A.C.C.P. ¹ Appellant raises twelve points of error in this direct appeal. We will reverse appellant's conviction on the basis of our disposition of his fourth point of error, and address the one point of error challenging the sufficiency of the evidence on the second punishment issue. Lane v. State, 743 S.W.2d 617, 629 (Tex.Crim.App.1987), cert. denied, 504 U.S. 920, 112 S.Ct. 1968, 118 L.Ed.2d 568.

In his eighth point of error, appellant contends the evidence at trial is insufficient to establish that he would commit criminal acts of violence that would constitute a continuing threat to society. In reviewing the sufficiency of the evidence to support an affirmative answer to the second punishment issue, this Court utilizes the same standard of review for judging the sufficiency of the evidence to support a conviction, viz: we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the punishment issue beyond a reasonable doubt. Black v. State, 816 S.W.2d 350, 352 (Tex.Crim.App.1991), cert. denied, sub. nom., Black v. Collins, 504 U.S. 992, 112 S.Ct. 2983, 119 L.Ed.2d 601 (1992). When deliberating on the punishment issues, the jury is entitled to consider all evidence admitted at both phases of trial. We therefore proceed to review that evidence.

The record reflects that officers of the Houston Police Department discovered two persons--one still alive--in a vacant field in Harris County on September 26, 1988. The victims, S____ C____ and M____ T____, had both sustained multiple stab wounds. The aorta and jugular vein of each victim had been severed.

Houston police officer Donald Hamilton spoke with S____ C____ at the scene before she died. S____ C____ informed Hamilton that someone named "Preston" had tried to sexually assault her and then had stabbed her. Based on this information, the police officers went to an apartment complex located approximately 100 yards from the vacant field. The police requested and received a list of apartment tenants from the manager of the complex. Appellant was the only person named Preston on the list.

Around 2:30 a.m. on September 27, the police went to appellant's apartment. Appellant admitted the officers into his apartment and answered some questions, none of which mentioned the investigation of S____ C____'s and M____ T____'s deaths. Appellant agreed to accompany the officers to the police station for further questioning. At the police station, the interrogation of appellant continued while the police conducted a computer inquiry to determine whether appellant had a prior criminal record. The inquiry revealed that appellant had been involved in "some sexual assault cases."

During the interrogation, appellant admitted that he had become acquainted with S____ C____ through a mutual friend. Based upon (1) the proximity of appellant's residence to the scene of the offense, (2) the computer information about appellant's involvement with past sexual assault cases, (3) the statement from S____ C____ that "Preston" had attacked and tried to sexually assault her, and (4) the admission from appellant that he knew S____ C____, the police arrested appellant at 4:30 a.m. on September 27. After arresting appellant, the police informed him of his Miranda ² rights and continued to interrogate him. Over the course of several hours, appellant confessed to killing S____ C____ and M____ T____.

During the punishment phase of the trial, the State offered testimony and documentary evidence showing that when appellant committed the murders of S____ C____ and M____ T____, he was already serving two ten-year probated terms pursuant to a deferred adjudication judgment. Appellant had been placed on deferred adjudication for committing aggravated sexual assault and aggravated assault ³ against a thirteen-year-old female, T____ H____. T____ H____ testified that appellant had raped her in 1985 and had forced her to swear to be his girlfriend. Additionally, T____ H____ testified that appellant told her not to contact the police because he kept her home under surveillance.

Despite this threat, T____ H____ did contact the police and appellant was charged with aggravated sexual assault. As the trial date was approaching in late 1985, appellant confronted T____ H____, told her she should not testify against him, and fired a gun at her. T____ H____ informed the police of this incident, and appellant was charged with aggravated assault. Beyond T____ H____'s testimony, the State also introduced documents wherein appellant was found guilty of the offenses and received two sentences of deferred adjudication for ten years.

The record also contains evidence that appellant had been accused of sexual assault in the state of New York and that appellant had failed to attend a number of his scheduled meetings with his probation officer, Mikal Klumpp. Klumpp testified that he tried to accommodate appellant's schedule by remaining at the probation office later than he normally would. Despite Klumpp's efforts, appellant still missed numerous scheduled appointments.

Appellant presented punishment evidence in the form of testimony regarding his character. While few of the witnesses stated that they were aware of appellant's past legal problems, six of appellant's friends testified that he was a good-natured person and not prone to violence. Appellant's mother testified to the same effect. She also testified that, in her opinion, appellant did not pose a threat of future violence.

The second punishment question required the State to prove that appellant would, more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society, whether he was incarcerated or not. Smith v. State, 779 S.W.2d 417, 421 (Tex.Crim.App.1989). In weighing the evidence, the jury could consider a number of factors, including the existence of a prior criminal record, the severity of any prior crimes, and the calculated nature of the defendant's conduct. Stoker v. State, 788 S.W.2d 1, 7 (Tex.Crim.App.1989). Moreover, the jury may return an affirmative answer to the second punishment issue based solely upon the facts and circumstances of the case being prosecuted. Farris v. State, 819 S.W.2d 490, 498 (Tex.Crim.App.1990); Muniz v. State, 573 S.W.2d 792, 795 (Tex.Crim.App.1978).

Appellant argues that the evidence is insufficient to support the jury's affirmative answer because no one testified that appellant "had a bad reputation for peacefulness, nor was any psychiatric evidence offered on the issue of future dangerousness." Appellant also argues that the facts of the charged offense alone are not brutal enough by themselves to "justify the death sentence." The State argues not only that the facts of the instant offense are sufficient to warrant the death penalty, but also that the remainder of the evidence adequately demonstrates the likelihood that appellant would commit criminal acts of violence in the future.

Appellant's eighth point of error is without merit. The evidence shows that appellant raped T____ H____ just three years before he attacked and murdered S____ C____ and M____ T____. In an effort to silence T____ H____, appellant threatened her and fired a gun at her. Moreover, appellant's attack upon S____ C____ and M____ T____ was cold and calculating, as evidenced by the severing of each person's aorta and jugular vein. Additionally, the victim who identified her attacker as "Preston," was a fifteen-year-old girl, approximately the same age as the victim T____ H____. Demonstrably, appellant has a history of sexually assaulting young teenage girls.

While the State did not introduce any psychiatric testimony on the issue of future dangerousness, a jury may return an affirmative answer without such evidence. See Cockrum v. State, 758 S.W.2d 577 (Tex.Crim.App.1988); Crawford v. State, 617 S.W.2d 925 (Tex.Crim.App.1980). On this record, we conclude that a rational jury could have found beyond a reasonable doubt that appellant constituted a continuing threat to society and overrule appellant's point of error eight.

In his fourth point of error, appellant asserts the trial court abused its discretion in denying his challenge for cause to prospective juror Faulkner. Appellant argues Faulkner was properly challengeable for cause pursuant to Art. 35.16(c)(2), V.A.C.C.P., which provides:

(c) A challenge for cause may be made by the defense for any of the following reasons:

* * * * * *

(2) That he has a bias or prejudice against any of the laws applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or the of the punishment therefor.

Appellant bases this challenge on Faulkner's understanding of the term probability as that term is used in Art. 37.071(b)(2). ⁴ The record reflects the following colloquy during Faulkner's voir dire examination:

Q. (by the prosecutor) Okay. Now, the word probability presents a problem sometimes.

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