Mayes v. State

• Decision Date: 10 November 1987
• Docket Number: No. 12-86-239-CR,12-86-239-CR
• Citation: Mayes v. State, 819 S.W.2d 877 (Tex. App. 1987)
• Parties: Willie Lee MAYES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 877

819 S.W.2d 877

Willie Lee MAYES, Appellant, v. The STATE of Texas, Appellee.

No. 12-86-239-CR.

Court of Appeals of Texas Tyler.

Nov. 10, 1987.

Rehearing Denied Dec. 31, 1987.

Second Rehearing Denied April 7, 1988.

Judgment Reversed, 816 S.W.2d 79.

Richard E. Swift, Jr., Swift, Swift & Lawrence, Palestine, for appellant.

Richard Handorf, Dist. Atty., Palestine, Travis McDonald, Asst. Sp. Prosecutor, Texas Dept. of Corrections, Huntsville, for appellee.

COLLEY, Justice.

Willie Lee Mayes was convicted by a jury of aggravated kidnapping. Two prior aggravated robbery convictions were alleged by the State for enhancement of punishment. The jury found the allegations true, and assessed punishment at ninety-nine years' confinement.

Mayes presents eight points of error attacking the indictment, the charge, and the trial court's rulings on the admissibility of certain testimony. He also contends that the trial court erred in overruling his mistrial motion and in putting him to trial while under certain physical restraints. We reverse the judgment and remand the cause for a new trial.

Mayes, an inmate of the Department of Corrections, and his cell mate, Reginald Reed, abducted corrections officer James Bitenc on February 28, 1985. Bitenc was held hostage for approximately one hour during which time Mayes made demands of prison officials, such as release of certain inmates and better food. Mayes told the authorities during the course of the commission of the offense that if his demands were not met, Bitenc would be killed. Mayes does not challenge the sufficiency of the evidence.

Under his first point Mayes asserts that the trial court erred in overruling his objection that the charge reduced the State's burden of proof by authorizing the jury to convict him if they found he "intentionally or knowingly" abducted Bitenc.

The indictment in pertinent part alleges that Mayes "did then and there intentionally abduct [the victim], without his consent,...."

The court's charge authorized the jury to convict Mayes if they found "from the evidence beyond a reasonable doubt ... that [Mayes] did intentionally or knowingly abduct [the victim] without his consent, with intent to prevent his liberation, by using or threatening to use deadly force on [the victim] and with intent to use him as a shield or hostage, then you will find ... [Mayes] guilty of aggravated kidnapping as charged in the indictment." (Emphasis ours.)

As we move to address this point, we are acutely aware that the 63rd Legislature took great care in drafting the "new" penal code so that a person could not be convicted of any defined offense unless at the very time of his conduct he was acting with one or more carefully defined "culpable mental states." See section 6.02. ¹

Section 6.02(d) classifies culpable mental states "according to relative degrees, from highest to lowest as follows: (1) intentional; (2) knowing; ...."

Section 6.03 defines culpable mental states and subsection (a) provides that a person acts intentionally "when it is his conscious objective or desire to engage in the conduct, or cause the result." Subsection (b) provides that a person acts knowingly "with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." A mere reading of these definitions of intentional and knowing reveals the difficulty one encounters in attempting to make a distinction in result-type cases like kidnapping or murder. In fact, even the staff lawyers, Messers, Searcy & Patterson who were involved in the drafting of the new penal code, observed in the commentary at the foot of section 6.03:

[I]n the context of a result-type offense element--death, property damage ...--the distinction between knowing and intentional is narrow, and is preserved [in this code] only because of the criminal law's traditional [common law] creation of specific intent offenses such as burglary, arson and theft. We say "only" because there is little difference in terms of blameworthiness, between one who wills a particular result and one who is willing for it to occur--between for example, ...; one who shoots into a moving car, intending to kill the driver, and one who shoots into a moving car he knows is occupied. The formulated distinction between intentional and knowing, as to results, it is thus between desiring the result and being reasonably certain that it will occur. (Emphasis added.)

As applicable here, under section 20.04, a person commits the offense of aggravated kidnapping if he intentionally restricts another person's movement by force or intimidation with intent to prevent that person's liberation by using or threatening to use deadly force, and with intent to use the person as a shield or hostage.

Under the authority of Garcia v. State, 640 S.W.2d 939 (Tex.Cr.App.1982), a pre-Almanza ² case, we would be required to "automatically" reverse the trial court's judgment based on the narrow issue that the trial court fundamentally erred in authorizing the jury to convict Mayes of aggravated kidnapping based on their finding of the existence of an unplead mental state, to wit: "knowingly." However, Almanza teaches that the error in the charge in Garcia, though labeled "fundamental" by the Garcia court, may, in the light of the charge as a whole and the state of the evidence, be harmless. Almanza, 686 S.W.2d at 174. The question on review when the error was, as here, the subject of a timely objection, is whether the error is " 'calculated to injure the rights of a defendant' which means no more than there must be some harm to the accused." ³ Almanza, 686 S.W.2d at 171.

The evidence in this case that Mayes intentionally abducted Bitenc is overwhelming. John McGowan, a fellow inmate in the Beto Unit of the Department of Corrections, was produced by Mayes as a witness. McGowan testified that he saw Mayes holding Bitenc with a knife at Bitenc's throat. Mayes made an effort at trial to produce testimony to raise the duress defense embodied in section 8.05(a). ⁴

Though we must recognize the weak theoretical distinction between "intentional" and "knowing," that is, the declaration by the legislature that "intentional" conduct in kidnapping offenses is more culpable than "knowing" conduct, we are not required, as we understand Almanza, to reverse the judgment in this cause, unless the inclusion in the court's charge of the unplead mental state of "knowingly" causes some harm to Mayes. In view of the state of the evidence and the charge as a whole, we conclude beyond a reasonable doubt that the error of including the culpable mental state of "knowingly" in the paragraph of the charge applying the law of aggravated kidnapping to the undisputed facts before the jury did not harm Mayes. The point is overruled.

By his second point of error Mayes contends the court erred in overruling his motion to quash the indictment on the ground that the aggravating element set forth in the charging instrument, viz., "with intent to use him as a hostage or shield," fails to put him on actual notice as to what allegation or theory the State intended to try him. That is, Mayes claims that the aggravating factor should have been alleged to show whether he acted with intent to use Bitenc as a "hostage" or whether he intended to use Bitenc as a "shield." We agree with the State's argument that under section 20.04(a)(2) an allegation that a person intentionally or knowingly abducts another "with the intent to use him as a shield or hostage," states but one method or means of committing aggravating kidnapping. The point is overruled.

By his third point of error Mayes complains that the trial court erred in trying him in chains. The record reveals that Mayes filed a pretrial motion, styled "Motion Not to be Tried in Jail Clothes and/or in Chains." After an evidentiary hearing the Honorable Melvin Whitaker, District Judge, overruled the motion on August 8, 1986, and noted the ruling on his docket sheet. Mayes reurged the motion on September 29, 1986, the date of jury selection in the case, before the then presiding judge, Honorable R. Wayne Lawrence.

Judge Lawrence reviewed the docket sheet entry made by Judge Whitaker, and without other explanation stated, "Judge Whitaker has heard the motion and afforded him an evidentiary hearing and I adopt the rulings of Judge Whitaker."

An accused's right to enjoy a presumption of innocence at his trial until such time as his guilt is established by the State beyond a reasonable doubt is not an independent right arising out of either the state or federal constitutions, but its denial may result in a violation of his right to a fair trial under the Fourteenth Amendment, ⁵ depending on the totality of the circumstances surrounding his conviction. Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979).

In this state, the current Texas Penal Code ⁶ and the current Texas Code of Criminal Procedure ⁷ contain identical provisions establishing ⁸ such right. Nevertheless, the Court of Criminal Appeals for at least some sixty odd years has recognized the discretion of a trial judge to require the use of physical restraints on a prisoner before the bar as a means of protecting court officers and "bystanders" and maintaining order and decorum in the courtroom. Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941, 943-944 (1925). Although the Gray court ruled against the accused, it stated:

We desire to make it perfectly plain that we regard a trial with the prisoner in irons as obnoxious to the spirit of our laws and all ideas of justice, and it is only when the record brings the case clearly within one of the rare exceptions that we would consent for a conviction to stand. Before a judge should permit a case to proceed under such circumstances, he should be very sure of his ground.

Gray, 268 S.W. at 950.

Forty-nine years after Gray was decided, the Court of Criminal Appeals in Walthall v....