Joiner v. State

• Decision Date: 12 February 1992
• Docket Number: No. 70269,70269
• Citation: 825 S.W.2d 701
• Parties: Orien Cecil JOINER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 701

825 S.W.2d 701

Orien Cecil JOINER, Appellant, v. The STATE of Texas, Appellee.

No. 70269.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 12, 1992.

Rehearing Denied March 18, 1992.

Sam Ogan, Lubbock (court appointed), for appellant.

Travis S. Ware, Dist. Atty., Lubbock, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(6)(A). ¹ The jury affirmatively answered the two issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b). ² Punishment was assessed at death. Tex.Code Crim.Proc.Ann. art. 37.071(e). Appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071 § 2(h). We will affirm.

I.

Appellant does not challenge the sufficiency of the evidence to support his conviction. However, in his fourth point of error, appellant challenges the sufficiency of the evidence to support the jury's affirmative answer to the second issue. Appellant contends that the evidence was insufficient to prove that there is a probability that he will commit criminal acts of violence that would constitute a continuing threat to society. See, Tex.Code Crim.Proc.Ann. art. 37.071(b)(2). To address this point of error, we must determine if the evidence, when viewed in the light most favorable to the verdict, would persuade any rational trier of fact to answer the issue in the affirmative. See, Stoker v. State, 788 S.W.2d 1 (Tex.Cr.App.1989) cert. denied 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Burns v. State, 761 S.W.2d 353 (Tex.Cr.App.1988); and Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987). A review of the entire record is necessary because the jury is entitled to consider the evidence presented at the guilt-innocence phase as well as the punishment phase when answering the issues. Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991); Huffman v. State, 746 S.W.2d 212, 223 (Tex.Cr.App.1988); Beltran v. State, 728 S.W.2d 382 (Tex.Cr.App.1987); and Livingston v. State, 739 S.W.2d 311 (Tex.Cr.App.1987) cert. denied 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

Appellant and his wife were estranged. This was stressful upon appellant and he had threatened suicide. Shortly before Thanksgiving, 1988, appellant was hospitalized for psychological or emotional reasons.

On December 17, 1988 the two female complainants were found in their apartment in Lubbock. The appellant lived next door. The first complainant, was found to have been stabbed four times in the chest and further received a series of lacerations on her neck. The second complainant suffered forty-one stab wounds to her chest, blunt force trauma to her head, lacerations to the head, and, her throat had been, according to the medical examiner, "slashed." Physical evidence further suggested that each complainant was sexually assaulted by appellant after their deaths. As previously noted, appellant does not challenge the sufficiency of the evidence to support his conviction for intentionally causing the deaths of the two complainants during the same criminal transaction.

In addition to the foregoing evidence of guilt, during the punishment phase of the trial, the State presented evidence that, approximately three days prior to the murders, appellant had held his wife captive for over twenty-four hours. During this period appellant forced his estranged wife to disrobe and assaulted her with a knife. There was further evidence that appellant had an explosive temper and had a particular affinity for knives.

The State presented testimony from a psychiatrist, testifying from a hypothetical question, which indicated that someone in appellant's position would have a substantial probability of committing criminal acts in the future which would constitute a continuing threat to society.

Appellant, during the punishment phase of the trial, submitted evidence that he had little trouble living in the Lubbock County Jail during his pre-trial incarceration of one year and three months. Appellant's first wife further testified that appellant had never been violent with her and that she maintained contact with him. Prior to appellant's arrest for this offense, they planned to re-marry.

There are many factors that a jury may consider when answering the second issue. Among those factors are:

1. the circumstances of the capital offense, including the defendant's state of mind and whether he or she was working alone or with other parties;

2. the calculated nature of the defendant's acts;

3. the forethought and deliberateness exhibited by the crime's execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant's age and personal circumstances at the time of the offense;

6. whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

7. psychiatric evidence; and,

8. character evidence.

Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987). Additionally, the circumstances of the offense alone may be sufficient to sustain the jury's affirmative answer to the second issue. Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991); Stoker, 788 S.W.2d 1 (Tex.Cr.App.1989); Huffman v. State, 746 S.W.2d 212 (Tex.Cr.App.1988); and Moreno v. State, 721 S.W.2d 295, 302 (Tex.Cr.App.1986). "It has been said that the circumstances of the offense and the facts surrounding it may furnish greater probative evidence than any other evidence regarding the probability of future acts of violence." Alexander v. State, 740 S.W.2d 749, 761 (Tex.Cr.App.1987). ³

Appellant argues that this Court has never addressed what circumstances would be in and of themselves sufficient to sustain an affirmative finding on the second issue for one convicted under § 19.03(a)(6)(A). Appellant directs our attention to Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), and argues that every murder is senseless and that the State has failed to show anything more in the instant case.

It is true that every murder is senseless. While there may be a fact situation wherein the evidence presented in a prosecution under § 19.03(a)(6)(A) is not inherently sufficient to sustain the jury's affirmative answer to the second issue, this is not such a case.

The evidence presented in this case demonstrates a complete disregard for sanctity for human life. Appellant not only took the lives of the two complainants herein but disfigured and brutalized their bodies. Appellant's actions appear cold, deliberate and calculated. He was alone and not under the domination of another.

We do not find the evidence of appellant's distress over the separation from his spouse compelling in this case. There is no evidence that such distress is in any way associated with the brutal actions the appellant took on the complainants herein and the jury was fully able to consider such evidence in relation to the issue of future danger. ⁴

The evidence reveals appellant has a "quick" temper and had exhibited a knife in the past. Shortly before the murders, appellant imprisoned his wife in her apartment, disrobed her using his knife, placed the knife to her throat and struck her with his fists. Subsequent to his arrest for this offense, appellant made verbal and written threats against his wife. Were the facts and circumstances of this offense alone not sufficient to sustain the jury's response to the second issue, this additional evidence, along with the psychiatric testimony, is sufficient to support the jury's affirmative answer. The evidence was sufficient to support the jury's finding that appellant would in probability commit criminal acts of violence that would constitute a continuing threat to society. We overrule appellant's fourth point of error.

II.

Appellant presents four points of error concerning the trial court's jury charge on punishment and the jury's ability to consider the mitigating evidence presented at trial. ⁵ Because of the similarity of these issues and to avoid unnecessary duplication, these issues will be considered together.

The resolution of these issues requires a review of pertinent decisions of the United States Supreme Court. The Supreme Court first considered the constitutionality of Tex.Code Crim.Proc.Ann. art. 37.071 in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The Supreme Court held that art. 37.071 is constitutional when considered with the broad interpretations of the statute by this Court. In short, the statute allows for the consideration of mitigating circumstances through the jury's deliberation on the punishment issues.

The issue of mitigation and capital punishment next appeared in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) wherein the Supreme Court stated, "[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-5 (emphasis in original). There must be an individualized consideration of all mitigating factors available. However, the weight to be placed upon the mitigating evidence is wholly within the province of the fact finder. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

In 1988 the Supreme Court addressed whether or not a separate instruction was required for the consideration of the mitigating evidence offered during trial. Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). The sole evidence offered was Franklin's good behavior during previous incarcerations. The Supreme Court found this type of "mitigating evidence" could be considered within the scope of the second issue submitted under art....