Jenkins v. State
| Decision Date | 05 May 1993 |
| Docket Number | No. 71,040,71,040 |
| Citation | 912 S.W.2d 793 |
| Parties | Leo Ernest JENKINS, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted of capital murder pursuant to Texas Penal Code Section 19.03(a)(2). The jury made affirmative findings on the two special issues submitted to it and the trial court imposed the sentence of death. This case comes to us on direct appeal. TEX.CODE CRIM.PROC.ANN. art. 37.071 § 2(h). We will reverse based upon our disposition of appellant's points of error seventeen, eighteen and nineteen, 1 and address point of error thirteen, challenging the sufficiency of the evidence.
In point of error thirteen appellant challenges the sufficiency of the evidence to sustain an affirmative finding on the second special issue, whether there is "a probability that [appellant] would commit criminal acts of violence that would constitute a continuing threat to society[.]" A discussion of the facts relevant to this issue is necessary. The evidence at trial established that in the early afternoon of August 29, 1988, appellant and accomplice Eugene Hart entered the Golden Nugget Pawn Shop in Harris County, Texas, shot the two clerks on duty, stole jewelry and money and fled on foot. Evidence connecting appellant and Hart to the scene led to their arrests the next day. After his arrest, appellant directed police officers to the locations where he had thrown the pistol used in committing the offense and the spent shells from the pistol. In a written confession appellant confessed that he was the triggerman in both shootings. Appellant further stated that he had initiated the plan to rob the pawn shop and had solicited Hart's involvement. Appellant stated that "[Hart] and I had already made up our minds that when we jacked (Robbed) the place we were going to have to kill whoever was there because we did not want to be identified."
At punishment, the State introduced evidence of appellant's two prior burglary convictions and appellant's military records reflecting his discharge "Under Other Than Honorable Conditions" due to frequent misconduct. Appellant's prison records were also introduced, evidencing repeated reports of misconduct, primarily relating to appellant's refusal to work. In addition, psychologist, Dr. Michael Field, testified for the State that he had diagnosed appellant as having an antisocial personality disorder. Field testified that appellant was not subject to rehabilitation and would constitute a continuing threat to society. While in prison appellant confided in a fellow inmate, James Jackson, that he planned to "eliminate" his cohort Hart, who was also in prison, by poison. Jackson testified that appellant wanted him to contact a kitchen worker who would be able to facilitate appellant's plan. Appellant also told Jackson that he had wanted to kill Hart immediately after committing the offense, but had not had the opportunity. Appellant argues that while his military and prison records were not exemplary, the infractions were of a passive nature. Appellant further contends that the State's psychological evidence was faulty because it was based upon a twenty minute interview conducted while appellant was incarcerated some six years prior to the commission of the instant offense. Appellant also introduced letters and poems that he had written for the purpose of showing that he was remorseful.
In reviewing the sufficiency of the evidence to sustain the jury's affirmative finding on a special issue, we consider whether that evidence, viewed in the light most favorable to the verdict, would lead any rational trier of fact to the same conclusion beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Fuller v. State, 827 S.W.2d 919, 934 (Tex.Crim.App.1992), cert. filed (June 23, 1992). In reaching a verdict on the special issues, the jury is allowed to consider evidence introduced at both stages of the trial. Miniel v. State, 831 S.W.2d 310, 322 (Tex.Crim.App.), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992). The circumstances of the offense alone, if sufficiently heinous, can suffice to support the jury's verdict. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987); Johnson v. State, 853 S.W.2d 527, 531 (Tex.Crim.App.1992). In addition to the crime itself, the jury may consider factors such as whether the accused was acting in concert with others, his state of mind at the time, the calculated nature of the acts culminating in the offense, forethought and deliberation preceding the murder, the accused's age, prior criminal history, psychiatric evidence and character evidence. See, e.g., Keeton, 724 S.W.2d at 61; Vuong v. State, 830 S.W.2d 929, 934-35 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992).
Viewed in the light most favorable to the decision made by the jury, we hold the evidence sufficient to support the jury's affirmative finding on the second special issue beyond reasonable doubt. First v. State, 846 S.W.2d 836 (Tex.Crim.App.1992). The offense, while not sufficiently heinous alone to justify an affirmative finding on the second issue, is probative of appellant's future conduct. The robbery and the murders were planned with forethought and put into calculated operation. Appellant admittedly planned, prior to committing the offense, to kill anyone who might be in the store in order to avoid an identification. Both unarmed clerks were shot at close range and without provocation as part of appellant's pre-devised scheme. These circumstances, together the other evidence elicited by the State at the punishment phase of trial, including evidence of appellant's plans to kill his accomplice, appellant's prior criminal history, poor military and prison records and the psychologist's testimony that appellant could not be rehabilitated support the jury's affirmative finding on the second special issue. Point of error thirteen is overruled.
In points of error seventeen, eighteen and nineteen, appellant complains of the trial court's failure to compel a State's witness to produce certain reports which related to his testimony. Appellant claims that the trial court's actions violated Texas Rule of Criminal Evidence 614 and that appellant was thereby denied his right of confrontation and due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 19 of the Texas Constitution.
During the punishment phase of trial Larry Bitter, a narcotics investigator with the Texas Department of Corrections (TDC), testified as a State's witness about the importation of drugs into TDC and their widespread use by inmates. 2 Following are excerpts of that testimony:
Q. [Prosecutor] What does your job consist of?
A. [Bitter] We're responsible for the investigation of allegations of narcotics traffic primarily within the prison system.
* * * * * *
Q. Are there narcotics found inside TDC?
[objection omitted]
A. Yes, sir, there are.
[objection omitted]
Q. Are narcotics available to inmates of the Texas Department of Corrections?
[objection omitted]
A. Yes, sir.
* * * * * *
Q. Have you found drugs in possession of any inmates at the Department of Corrections?
[objection omitted]
A. Yes, sir, we have.
Q. What type of drugs have you found on inmates in the Texas Department of Corrections?
A. Everything. Heroin, marijuana, cocaine, LSD; all drugs that are available in the free world we have found on inmates.
Q. Do you know how those drugs get in?
A. Yes, sir. There are a variety of different ways.
Q. ... What various ways have you found drugs get into the Texas Department of Corrections?
[objection omitted]
A. Through officers and employees, civilians who come to visit on weekends, through the mail.... there are a series of different ways to get it in through the mail. We've had LSD that has been placed behind a postage stamp on an envelope. We have seen it coming in that way.
Q. Are you talking about small amounts, or what is the largest amount of drugs you've found on an inmate in the Texas Department of Corrections?
A. We have seized in excess of a half a pound of marijuana. We have seized in excess of an ounce of cocaine.
Q. How do they ingest the drugs that are ingested? Do they use syringes or what?
A. Each unit houses an infirmary. In the course of business, the infirmary has syringes and hypodermic needles, and because the way the prison is run, inmates are allowed access to nearly every portion of the prison. They are able to sometimes steal syringes, and sometimes officers will bring in syringes as part of what he does for inmates. So they dig them out of the trash cans; as medical personnel throw them away, they use syringes.
* * * * * *
Q. Would the fact that a person may have been to the penitentiary on at least two occasions, would that person have a better understanding of how to obtain drugs in the penitentiary?
[objection omitted]
A. Yes, sir, he would.
Q. The fact that a person is confined to the Texas Department of Corrections, would that automatically cut the availability of any controlled substance or dope to him or her?
A. No, sir.
On cross-examination Bitter stated that as part of his job he made reports and findings of his investigations of drug importation into the TDC. Thereupon, appellant requested that he be given those reports for purposes of further cross-examination pursuant to Rule of Criminal Evidence 614. 3 The trial judge ordered the production of reports that specifically concerned appel...
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