King v. State

• Decision Date: 11 May 1977
• Docket Number: No. 53641,53641
• Citation: 553 S.W.2d 105
• Parties: Edward Lincoln KING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 105

553 S.W.2d 105

Edward Lincoln KING, Appellant, v. The STATE of Texas, Appellee.

No. 53641.

Court of Criminal Appeals of Texas.

May 11, 1977.

Rehearing Denied June 8, 1977.

Paul P. Riley, Dallas, for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Jon Sparling and Stephen P. Tokoly, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted for capital murder after having been indicted for shooting and killing Leslie G. Lane, a Dallas police officer. V.T.C.A., Penal Code Sec. 19.03(a)(1). Punishment was assessed at death after the jury affirmatively answered the issues submitted to them at the punishment stage of the trial pursuant to Art. 37.071, V.A.C.C.P.

The six grounds of error presented for our review challenge the charges submitted to the jury at the guilt and punishment stages of the trial. The sufficiency of the evidence is not contested.

Before the charge was submitted to the jury at the guilt stage of the trial, the appellant requested the court to "give instructions to the jury limiting extraneous acts to the purpose for which such evidence was admitted." Appellant apparently desired a limiting instruction on evidence of extraneous offenses he committed both shortly before and after the murder of Officer Lane. These offenses included theft of a police officer's car, aggravated assault, theft of a policewoman's pistol and purse, resisting arrest, and impersonation of a police officer.

In his brief, appellant concedes that the evidence of the extraneous offenses was "probably legally admissible." He contends, however, that the court should have instructed the jury that such evidence should be limited to the issue of appellant's identity.

Two valid reasons exist for overruling this ground of error. First, the evidence of the extraneous offenses showed "the context in which the criminal act occurred what has been termed the 'res gestae'." Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97 at 100. In Arivette v. State, 513 S.W.2d 857, at 864, we stated:

". . . it is not necessary to give a limiting instruction on an extraneous offense which constitutes a part of the res gestae of the offense for which an accused is on trial."

The second basis for overruling appellant's contention is provided by the generous charge given by the trial court at the guilt stage of the trial:

"You are further instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense alleged against him in the indictment, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the context, if it does, in which the act alleged in the indictment occurred, if it did, and in determining the identification of the defendant, if any was in fact determined, in connection with the offense, if any, alleged against him in the indictment and for no other purpose."

Appellant is in no position to challenge the charge given by the trial court since he received more than he was entitled to under our decision in Arivette v. State, supra. This ground of error is without merit.

The final five grounds of error complain of the charge submitted to the jury at the punishment stage of the trial.

Appellant asserts that the trial court committed reversible error by failing, after timely request, to define the following words contained in Art. 37.071(b), V.A.C.C.P.: ¹ deliberately; probability; criminal acts of violence; continuing threat to society. At the time of appellant's trial, ² Article 3.01, V.A.C.C.P., provided:

"All words, phrases, and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specifically defined; and, unless herein specially excepted have the meaning which is given to them in the Penal Code."

The words and phrases in issue have not been specially defined.

This Court has been faced with similar contentions in the past. In Joubert v. State, 136 Tex.Cr.R. 219, 124 S.W.2d 368, we held that the word "voluntarily" as contained in the indictment charging murder with malice need not be defined. We have also stated that "burglarious entry," Thomas v. State, Tex.Cr.App., 543 S.W.2d 645; "sound memory and discretion," Hogan v. State, Tex.Cr.App., 496 S.W.2d 594; "reasonable doubt," Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; and "pre-meditated design," Mitchell v. State, Tex.Cr.App., 365 S.W.2d 804; need not be defined. ³

The reason for not requiring the definition of common terms and phrases was stated in Joubert v. State, supra:

"Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury." 124 S.W.2d at 369.

Appellant contends that the jury will not have adequate guidelines to assist its determination of the issues contained in Art. 37.071, supra, unless definitions for the terms contained therein are provided in the charge to the jury. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, however, the Supreme Court of the United States concluded that the submission of the issues provided by Art. 37.071, supra, constitutionally guided the jury's determination of the punishment issues. No special definitions of the terms of that statute were required.

We hold that the court need not provide special definitions for these terms in its charge to the jury during the punishment stage of a capital murder trial. Appellant's grounds of error are overruled.

The final ground of error asserts that the court erroneously refused to submit a charge on circumstantial evidence with regard to the issue of whether there was a probability he would commit future acts of violence constituting a continuing threat to society. (Issue number two of Art. 37.071, supra.) This contention was expressly rejected in Shippy v. State, --- S.W.2d ---- (Tex.Cr.App., No. 53,831, April 27, 1977). The final ground of error is overruled.

The judgment is affirmed.

PHILLIPS, Judge, concurring.

For the reasons set forth in Shippy v. State, --- S.W.2d ---- (Tex.Cr.App., No. 53,831, decided April 27, 1977), I concur in the overruling of appellant's fifth ground of error relating to the giving of a charge on circumstantial evidence at the punishment phase of the trial.

Although the issue was not raised in the brief, I believe it is the duty of this Court to pass on the sufficiency of the evidence to support the jury's answer "yes" to the three special issues submitted under Art. 37.071(b), V.A.C.C.P.

The Supreme Court announced in Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976):

"By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be 'wantonly' or 'freakishly' imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S., (238) at 310, 92 S.Ct. at 2762 (33 L.Ed.2d 346)".

In upholding Georgia's capital-sentencing procedures, the Supreme Court noted in Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976):

"As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's supreme court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases.

Moreover to guard further against a situation comparable to that presented in Furman ¹, the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman."

Similarly, in Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) the Supreme Court held:

"The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida's appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida 'to determine independently whether the imposition of the ultimate penalty is warranted.' (Citations omitted). The Supreme Court of Florida like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. Indeed, it has vacated eight of the 21 death sentences that it has reviewed to date. (Citations omitted.)

Under Florida's capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover their decisions are reviewed to insure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is ' "no...