Miller-El v. State, MILLER-E

• Citation: 782 S.W.2d 892
• Decision Date: 17 January 1990
• Docket Number: Nos. 315-88,A,MILLER-E,316-88,s. 315-88
• Parties: Dorothy Jeanppellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 892

782 S.W.2d 892

Dorothy Jean MILLER-EL, Appellant, v. The STATE of Texas, Appellee.

Nos. 315-88, 316-88.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 17, 1990.

John H. Hagler (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty., Michael A. Klein, Constance M. Maher, James Nelson, and Bruce Isaacks, Asst. Dist. Attys., Dallas, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

In a single trial appellant was convicted as a party to the offenses of murder and attempted capital murder. The jury assessed punishment at life in each cause, and the trial court ordered that the sentences run consecutively.

The State was allowed to adduce evidence over objection during the punishment stage of appellant's trial regarding the medical condition and prognosis of the victim of the attempted capital murder offense. In an unpublished opinion, the Dallas Court of Appeals reversed appellant's conviction, holding that insofar as it amounted to "a medical forecast of the victim's future health" rather than "an assessment of injuries on the occasion in question[,]" such evidence was unrelated to any issue at the punishment phase of trial, and "clearly calculated to inflame the minds of the jury[.]" Miller-El v. State, (Tex.App.--Dallas, Nos. 05-86-00955 & 05-86-00956, delivered November 25, 1987). In its petition for discretionary review the State contends the prognosis evidence would have been admissible at the guilt stage of trial, and that any evidence admissible at guilt may be admitted at the punishment stage. We granted the State's petition to address admissibility at the punishment stage of testimony relating after-effect of an injury caused to the victim in the course of committing the offense. Tex.R.App.Pro., Rule 200(c)(2).

I.

For about nine months prior to the offense appellant was employed as a night maid for the Holiday Inn on Airport Freeway in Irving. Her duties included cleaning the front desk and office area where the motel safe, safety deposit boxes and cash drawers were located. Sometime in late October of 1985, approximately three weeks before commission of the offense, appellant was present at a gathering in her apartment, during which her husband, Thomas Joe Miller-El, was overheard to state that appellant had "cased out" the motel, that he needed money, and that he would kill any witnesses.

A week or so later appellant used her employee discount to arrange a three day meeting of the Moorish Feast Temple, apparently a religious organization, at the Holiday Inn. Two men, garbed in turbans and robes, identified themselves as "security" for the meeting, and were observed wearing communications headsets. One, later identified as Kenney Sonny Flowers, was seen with a gun. After the meeting concluded, appellant never returned to work at the motel.

At 12:30 a.m. on the morning of November 16, 1985, appellant appeared at the motel to collect her last paycheck. Donald Hall, the night auditor, recognizing appellant as an employee, let her into the front desk area and retrieved her check from a safety deposit box. Appellant then left. At about 5:00 a.m., Hall was in the office area training another employee, Douglas Walker, when he heard a noise at the front desk. There he found two black men, whom he later identified as Miller-El and Flowers. Flowers was wearing a headset like the one earlier seen at the Moorish Feast meeting. At first the men requested a room, but when Hall attempted to comply, Miller-El drew a small submachine gun from a briefcase, and Flowers pulled a pistol. Hall was told he would not be hurt if he cooperated, and he handed over the contents of the cash drawer. Flowers leapt over the counter and brought Walker out to the front desk area.

Flowers then opened the door and let appellant, who had apparently been waiting out of sight, into the front desk area. Appellant proceeded straight toward the safe and safety deposit boxes. Hall testified:

"Q Did you recognize her?

A Yes, I did.

Q Immediately?

A Yeah, but I was afraid to say anything or act like I recognized her.

Q Why?

A Because [sic] afraid I'd be shot if they knew I recognized her.

Q Mr. Hall, you've said that, when Thomas Joe Miller-El told you nobody would be hurt, it kind of reassured you?

A Yes.

Q What went through your mind when you saw [appellant] coming through?

A I knew he wasn't going to leave us alive.

Q Why?

A Witnesses.

Q Did she have anything on her face?

A No.

Q Any type of disguise at all?

A No, none at all.

Q She knew you. As a matter of fact, she had seen you just four or five hours before that?

A That is correct.

Q And she would know that you knew her?

A Yes."

Miller-El and Flowers forced Hall and Walker into a closet, and there bound and gagged them, stripped them of valuables and lay them face-down on the floor. Miller-El asked Flowers "if he was going to do it." Flowers replied that he could not, and left. Miller-El removed the sunglasses he had been wearing up to that point. He shot Walker twice in the back, killing him. He then shot Hall, severing his spine and rendering him a paraplegic. The robbers made off with the motel safe.

From a wheelchair, Hall testified at the guilt stage, without objection, that he had spent seven days in the hospital following the shooting; that he was still undergoing treatment at the time of trial, some ten months later; and that although told by his doctors he would never walk again, he was determined to "keep trying." No other evidence was elicited at the guilt stage pertaining to Hall's condition.

At the punishment stage, however, the State proffered testimony from Dr. Craig Harrison, the surgeon who treated Hall in the emergency room. As the trial court characterized it, Harrison's testimony was intended to inform the jury of "the nature of the the injury [to] ... Hall and his current prognosis." Appellant objected that such testimony was relevant to no material issue at punishment, and was solely intended to prejudice the jury. The State argued the testimony would have been admissible at the guilt phase, and was therefore admissible at punishment. Expressly declining to state "reasons," the trial court admitted the testimony.

Accordingly, Harrison outlined for the jury the "special needs" that "[a] spinal chord [sic] patient, as we call them, ... will have ... related to their injury for the rest of their life." He testified that as a result of his paralysis, Hall will never regain bladder and bowel control. Nor will he ever recover sexual and procreative functions. He will be required to maintain a constant vigilance to prevent infection and bed sores. Recurring spasticity may ultimately deprive him even of the use of a wheelchair.

II.

The court of appeals reversed appellant's conviction on authority of this Court's decision in Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838 (1962). Fowler involved a prosecution for assault with a motor vehicle. The trial court allowed evidence from a physician going beyond the nature of the injury caused, viz: a broken leg and thumb, to what this Court characterized as "prognosis" testimony that the victim had sustained a permanent disability in the form of a shortened leg and a limp. The Court reversed the conviction, observing that this latter testimony did not "solve[ ] any issue in the case[,]" and was "no doubt prejudicial and inflammatory to the rights of the appellant before the jury, and it probably resulted in the imposition of a heavier penalty than would have been imposed absent this testimony." Id., at 352 S.W.2d 840-41. The court of appeals distinguished Levell v. State, 453 S.W.2d 831 (Tex.Cr.App.1970), which purports to overrule Fowler insofar as it conflicts. Levell was prosecuted for the offense of robbery with firearms. The court of appeals noted that, unlike in Fowler, the State had a burden in Levell to show the nature of the assault and violence involved. Here, as in Fowler, the court of appeals reasoned, "[a]t the punishment stage ... the State had no burden to demonstrate the nature and extent of the victim's injuries." Concluding that it was irrelevant to any issue at punishment, and calculated to inflame the jury, the court of appeals held that Dr. Harrison's testimony should not have been admitted.

The State now argues that nature and extent of a victim's injury may always be established at the guilt stage of trial in a prosecution for attempted murder. See Ortiz v. State, 577 S.W.2d 246 (Tex.Cr.App.1979), and cases cited at 249. The rationale for this rule is that evidence of the extent of injury is probative of the specific intent to kill, which the State must demonstrate in order to prove up the offense. Indeed, in Gilmer v. State, 157 Tex.Cr.R. 109, 246 S.W.2d 639 (1952), involving a prosecution for assault to murder, the Court based its holding that the evidence was sufficient to sustain the conviction upon the fact that the defendant shot his victim in the back and severed his spinal cord. Relying upon Hargrove v. State, 579 S.W.2d 238 (Tex.Cr.App.1979), the State reiterates the argument made to the trial court that because evidence of extent of injury is admissible at the guilt stage, it may also be adduced at punishment.

We agree the bare fact of Hall's paralysis was admissible at the guilt stage of appellant's trial as probative of Miller-El's intent to kill both Walker and Hall. We cannot agree, however, that Harrison's testimony regarding Hall's future hardship as a paraplegic had any tendency to make more or less probable the existence of any fact of consequence at the guilt stage of trial. Tex.R.Cr.Evid., Rule 401. Because Harrison's testimony was irrelevant to any guilt issue, and hence would not have been admissible over objection at that stage of trial, the State's argument fails at its inception.

III.

We nevertheless reject the court of appeals'...