Janecka v. State, 71803

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation937 S.W.2d 456
Docket NumberNo. 71803,71803
PartiesAllen Wayne JANECKA, Appellant, v. The STATE of Texas, Appellee.
Decision Date27 November 1996
OPINION

PER CURIAM.

In October 1993 appellant was retried and convicted under Texas Penal Code § 19.03(a)(3) of the 1979 murder for remuneration of a fourteen-month-old infant. 1 The jury affirmatively answered the two special issues submitted under Article 37.0711 § 3(b)(1) & (2) and negatively answered the mitigation special issue submitted under 37.0711 § 3(e). 2 Appellant was sentenced to death as mandated by Article 37.0711 § 3(g). Article 37.0711 § 3(j) provides for direct appeal to this Court. We affirm.

A brief account of the investigation and prosecution of this case is helpful to understanding some of appellant's arguments.

On the morning of July 6, 1979, the corpses of the Wanstrath family were discovered. John and Diana Wanstrath lay dead in their den. Their son, Kevin, was dead in his crib. Each had been shot in the head. Over the protests of the Wanstraths' friends, the Harris County Medical Examiner's Office declared the deaths a double-murder suicide. The Medical Examiner concluded that Diana Wanstrath had killed her husband, her son, and then herself. That the murder weapon was not found did not dissuade the Medical Examiner's Office from the suicide theory. 3 Officer Johnny Bonds of the Houston Police Department rejected the suicide theory and pursued his own investigation. His efforts eventually led to the discovery that Markhamer Duff-Smith, Diana's brother, had hired appellant to murder the Wanstraths so he could inherit their estates. 4

Sufficiency of Evidence

In a video-recorded interview with the documentary producer Lucious Norbert, appellant claimed he was forced under threat of the Mafia to commit the Wanstrath murders. In his twelfth point of error, appellant argues that having introduced the videotaped interview, the State was required, under the Palafox rule, to disprove duress under V.T.C.A. Penal Code, § 8.05. Palafox v. State, 608 S.W.2d 177 (Tex.Crim.App.1979). Because the State did not, appellant contends, we must hold the evidence insufficient.

Under the Palafox rule, the State was required to produce evidence positively to refute any exculpatory matter contained in a statement or confession of the accused that the State itself introduced into evidence. The doctrinal basis for this requirement was the so-called "voucher rule," by which each party was held to the verity of its own witnesses' testimony. Appellant readily acknowledges that the "voucher rule" was abolished by the Texas Rules of Criminal Evidence, effective in 1986. Thus, the doctrinal basis for the Palafox rule has disappeared, and with it, the rule itself. Russeau v. State, 785 S.W.2d 387, 390 (Tex.Crim.App.1990); Hernandez v. State, 819 S.W.2d 806, 813 (Tex.Crim.App.1991), cert. denied 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992). But appellant committed the instant offense in 1979, well before the effective date of the Rules of Criminal Evidence. He now argues that due process prohibits retroactive application of a court-made change in the law that requires (by analogy to ex post facto cases) "less proof, in amount or degree, than was required when the offense was committed[.]" Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884).

It is true the Supreme Court has held that retroactive application of an unforeseeable judicial construction of a statute, or a sudden, unanticipated change in a court-made rule, may violate due process in much the same way that retroactive application of new or modified penal provisions violates the Ex Post Facto Clause. See, respectively, Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) and Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). But the gravamen of this due process guarantee is "fair warning" to the defendant that his conduct was criminal at the time he engaged in it. Bouie, supra, at 352, 84 S.Ct. at 1701-02; Marks, supra, at 195 & 196, 97 S.Ct. at 994 & 995. Insofar as the Supreme Court has yet said, the Due Process Clause of the Fourteenth Amendment does not speak to the fairness, vel non, of retroactively lifting a burden of production of evidence from the shoulders of the State. And all the Palafox rule did, after all, was to impose a burden to produce evidence to refute any exculpatory matter that is contained in a confession admitted, and hence "vouched for," by the State. There is no indication the Supreme Court would regard the abandonment of this increased burden of production in any way to implicate considerations of "fair warning" about whether specific conduct is criminal.

Abandoning the Palafox rule does not add an element to the Legislature's definition of any offense. It does not operate retroactively to criminalize conduct that was not already punishable as a crime. It does not increase or otherwise alter criminal liability after the fact for conduct that was already criminal when committed. In short, abandoning Palafox in no way operates to deprive the accused of notice that his contemplated conduct would violate the law; nor does it confound him as to the punishment it would expose him to. It therefore does not call into play considerations of "fair warning." We cannot say failing to apply the Palafox rule in measuring sufficiency of the evidence in this appeal affects appellant's right to due process of law.

Accordingly, the evidence is not insufficient in this cause simply because the State did not present evidence to challenge the assertion in appellant's confession that he committed the instant offense under duress from the Mafia. The jury was free to regard that assertion as incredible, and thus to conclude that appellant had failed to establish duress, notwithstanding the Palafox rule. We overrule appellant's twelfth point of error.

In point forty-one appellant challenges the sufficiency of the evidence supporting the negative verdict to the mitigation special issue. Art. 37.0711 § 2(e). Rejecting arguments identical to those raised by appellant, we have previously held that such a review is neither necessary nor possible. McFarland v. State, 928 S.W.2d 482, at 497-99 (Tex.Crim.App.1996); Lawton v. State, 913 S.W.2d 542, 556-57 (Tex.Crim.App.1995); Colella v. State, 915 S.W.2d 834, at 844-45 (Tex.Crim.App.1995). Appellant's forty-first point is overruled.

In point forty-eight, appellant avers the evidence was insufficient to support the jury's finding that he probably will "commit criminal acts of violence that would constitute a continuing threat to society." Art. 37.0711 § 3(b)(2). Appellant admits that "the State offered a substantial amount of evidence regarding his criminal history and the circumstances of the offense" but argues that the State offered nothing to rebut evidence that he has been a model prisoner during his fourteen years of incarceration.

We have long recognized that "jurors are the exclusive judges of the facts." Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). This court does not reweigh the credibility or reassess the weight of evidence but asks only whether evidence exists to rationally support the jury's verdict. E.g. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994). When evidence both supports and conflicts with the verdict, we must assume that the factfinder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993).

As appellant concedes, the State offered a "substantial" amount of evidence supporting the jury's verdict as to future dangerousness. This included evidence of sadistic brutality inflicted by appellant on his own family and evidence of his successful career as a hit-man, in the course of which he killed at least four people, including an infant brutally murdered in his crib. This evidence supports the jury's verdict; it was within the jury's prerogative to reject appellant's evidence of his reformed character. Appellant's forty-eighth point of error is overruled.

Suppression Issues

In his first, second, and third points of error, appellant contends that the trial court erred in overruling his motion to suppress various evidentiary fruits tainted by his illegal arrest. Appellant was arrested under two warrants; one alleged arson and another the murder of Keith Farmer. Neither offense was related to the Wanstrath murders. Prior to appellant's initial trial the murder warrant was ruled invalid due to untrue statements in the supporting affidavit. Janecka v. State, 739 S.W.2d 813, 822 (Tex.Crim.App.1987). Now appellant argues, under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that his arson warrant should also be invalidated because of Officer Bonds' reckless and intentional misrepresentations in the probable cause affidavit supporting that warrant. Admitting that some of the statements were not totally accurate, the State denies that Bonds intentionally or recklessly misled the court or that the alleged misrepresentations are material to establish probable cause. After pre-trial hearings prior to both of appellant's trials, appellant's Franks motions attacking the arson arrest warrant were denied. As the sole fact-finder and judge of the witnesses' credibility and weight of the evidence, the trial court is owed great deference, and its ruling will be overruled only if outside the bounds of reasonable disagreement. Flores v. State, 871 S.W.2d 714, 721 (Tex.Crim.App.1993), cert. denied, 513...

To continue reading

Request your trial
347 cases
  • People v. Barnett
    • United States
    • California Supreme Court
    • May 4, 1998
    ...evidence and matters not reflected in the record on appeal, we decline to consider it at this juncture. (Accord, Janecka v. State (Tex.Crim.App.1996) 937 S.W.2d 456, 476.) III. For the reasons stated above, we find no reversible error in the record. The judgment of death is affirmed. 101 GE......
  • Green v. Davis
    • United States
    • U.S. District Court — Southern District of Texas
    • August 18, 2020
    ...been preserved for appeal, and the trial court's denial would have been reviewed for abuse of discretion. See Janecka v. State , 937 S.W.2d 456, 468 (Tex. Crim. App. 1996) ("The trial court's ruling on a motion for continuance is reviewed for abuse of its discretion.").26 "Where denial of a......
  • Raby v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 4, 1998
    ...837 S.W.2d 117, 119 (Tex.Cr.App.1992); and, Naugle v. State, 118 Tex.Crim. 566, 40 S.W.2d 92, 94 (1931).; see also, Janecka v. State, 937 S.W.2d 456, 471 (Tex.Cr.App.1996); Smith v. State, 676 S.W.2d 379, 384 (Tex.Cr.App.1984); and, Mathis v. State, 167 Tex.Crim. 627, 322 S.W.2d 629 (1959).......
  • State v. Schackart
    • United States
    • Arizona Supreme Court
    • October 30, 1997
    ...to promote fair adjudication in death penalty cases would in themselves be used to ultimately defeat their own purpose."); Janecka v. State, 937 S.W.2d 456, 476 (1996) (no factual basis to prove psychological torment and law does not recognize present We perceive no constitutional violation......
  • Request a trial to view additional results
59 books & journal articles
  • Motions Related to Searches of Persons
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Forms. Volume I - 2014 Contents
    • August 12, 2014
    ...that a falsehood in the affidavit was made knowingly, intentionally, or with reckless disregard for the truth. Janecka v. State , 937 S.W.2d 456 (Tex.Cr.App. 1996). The defendant must show that the allegations in the affidavit are not true in the sense that the affiant did not believe them,......
  • Arrests
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2021 Contents
    • August 16, 2021
    ...evidence that a falsehood in the affidavit was made knowingly, intentionally, or with reckless disregard for the truth. Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996). Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or......
  • Search and Seizure: Property
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2014 Contents
    • August 17, 2014
    ...evidence that a falsehood in the affidavit was made knowingly, intentionally, or with reckless disregard for the truth. Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996). Where the defendant makes a substantial preliminary showing that a false statement made knowingly and intentionall......
  • Pretrial Motions
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2015 Contents
    • August 17, 2015
    ...affidavits must assert that the defendant’s affiants are not credible and/or that their knowledge is insufficient. Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1996). The purpose of the controverting affidavits required by Art. 31.04 is to provide a form of pleading which establishes t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT