Moore v. State

• Decision Date: 16 October 1996
• Docket Number: No. 71972,71972
• Citation: 935 S.W.2d 124
• Parties: Michael Patrick MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 124

935 S.W.2d 124

Michael Patrick MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 71972.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 16, 1996.

Rehearing Denied Dec. 18, 1996.

Walter M. Reaves, Jr., West, for appellant.

Sandy S. Gately, District Attorney, Gatesville, Matthew Paul, State's Attorney, Austin, for State.

Before the court en banc.

OPINION

MALONEY, Judge.

Appellant was convicted of capital murder under Tex. Penal Code Ann. § 19.03(a)(2). The jury made findings on the special issues under Tex.Code Crim. Proc. Ann. art. 37.071 § 2 and the trial court imposed a sentence of death. Direct appeal to this court is automatic. Tex.Code Crim. Proc. Ann. art. 37.071, § 2(h). Appellant raises nine points of error. We affirm.

In his fifth point of error appellant alleges the evidence was insufficient to support the jury's affirmative answer to Tex.Code Crim. Proc. Ann. art. 37.071, § 2(b)(1), the future dangerousness special issue. Article 37.071, § 2(b)(1) provides that the jury decide:

Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society ...

Appellant argues the State's evidence was legally insufficient because the circumstances of the offense were not "particularly aggravating" and he has no prior convictions for violent offenses. The State contends the jury's affirmative answer is supported by the facts of the offense, evidence of appellant's extraneous offenses, and testimony of an expert witness who stated that appellant poses a continuing danger to society.

In conducting a legal sufficiency review, we determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the challenged elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993). The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). In answering the special issues raised under art. 37.071 the jury may consider evidence admitted at both the guilt-innocence and punishment stages of trial. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). The jury may look at several factors in its review of future dangerousness including, but not limited to:

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

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

2. the forethought and deliberateness exhibited by the crimes'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 offense;

7. psychiatric evidence; and

8. character evidence.

Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.1994), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Viewing the evidence in the light most favorable to the jury's finding, the record supports the jury's verdict.

The facts of the crime are as follows. Armed with a gun and a knife, appellant entered the victim's home at about 2:20 am and headed toward the bedrooms. At the time he entered the home, appellant knew it was occupied. He was dressed in black so that he would not be seen in the dark. Appellant encountered the victim and a struggle ensued between them. The victim was stabbed several times by appellant who then dropped his knife. The victim was screaming so appellant drew his revolver and shot her. Because of the number and depth of the wounds the victim received, the medical examiner characterized the murder as "overkill" and "particularly brutal." The victim's fourteen year old son discovered her body. Appellant then fled the scene of the crime. Shortly thereafter, a police officer spotted appellant driving without his headlights. The officer attempted to get appellant to pull over, but appellant led the police on a high-speed car chase followed by a pursuit on foot. After appellant was apprehended, the police found a .22 caliber pistol and 50 rounds of ammunition in appellant's car. While the facts of the crime itself are perhaps not alone sufficient to support an affirmative finding to the future dangerousness special issue, additional evidence introduced at trial does support such a finding.

At the punishment phase the State introduced records from the Conners Children's Home, where appellant resided during part of his childhood, containing information about appellant when he was a child. The records indicate appellant twice set fire to his house and once to the Children's Home, threatened to kill his parents and blame their deaths on his younger brother, and tried to stab his younger brother with a pair of scissors. As a child, appellant continuously exhibited violent and improper sexual behavior. While serving in the Navy, appellant was on unauthorized absence three times and was convicted of grand larceny. The State also introduced appellant's notebook entitled "The Girls of Copperas Cove" in which he listed the names and addresses of 300 teenaged girls of Copperas Cove. Many of these girls including T.R., the victim's daughter, testified that appellant stalked, harassed, and threatened them. The State introduced evidence of various extraneous offenses, including several burglaries which often took place while the victims were home, perpetrated against the girls listed in the notebook. Letters that appellant wrote to several of the girls in which he threatened to rape them were introduced into evidence, including one letter written to a junior high student threatening to rape her and her best friend. Appellant's notebook also contained the license plate numbers of a Coryell County Justice of the Peace and a Copperas Cove police sergeant. Appellant testified that the notebook was not in its "final form." On direct examination, appellant admitted to being involved in a physical altercation while in jail.

The State also called Dr. Coons, a psychiatrist, to testify to appellant's future danger to society. He noted appellant's childhood displays of anger and violence and his lawless behavior. Dr. Coons reviewed the State's files and records of appellant, as well as appellant's psychological and psychiatric records, and was presented a hypothetical question embodying the significant facts of the case. Based on this information, Dr. Coons stated that appellant lacks a conscience, is a continuing threat to society, and would continue to commit criminal acts of violence. He stated violence and anger were well integrated into appellant's personality and that appellant's behavior would carry over into prison society. Dr. Coons testified that appellant would be manipulative, vindictive, and a threat to smaller prisoners.

This evidence is sufficient for a rational juror to find affirmatively that appellant is a continuing danger to society. His fifth point of error is overruled.

In points of error one through three appellant avers art. 37.071 is unconstitutional. In point one, appellant argues the lack of appellate review of the jury's answer under art. 37.071, § 2(e), the mitigation special issue, allows an arbitrary and capricious imposition of the death penalty. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). He contends appellate review is necessary to prevent the jury's "unfettered discretion as to when it will impose the death penalty." Appellant complains "there is no procedure in place for the jury to specify what mitigating circumstances it may find to exist;" an appellate court would have no means of knowing what the jury's decision is based upon. This Court has recently rejected arguments indistinguishable from appellant's. See, e.g., McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App. 1996), Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995), and Lawton v. State, 913 S.W.2d 542 (Tex.Crim.App.1995); Hughes v. State, 897 S.W.2d 285, 294 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995).

We have held In Texas, mitigating evidence is admissible at the punishment phase of a capital murder trial. Once admitted, the jury may then give it weight, if in their individual minds it is appropriate, when answering the questions which determine sentence. However, "[t]he amount of weight that the factfinder might give any particular piece of mitigating evidence is left to 'the range of judgment and discretion' exercised by each juror."

Colella, 915 S.W.2d at 844 (citing Banda v. State, 890 S.W.2d 42, 54 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995)). "Mitigating evidence" is defined as "evidence that a juror might regard as reducing the defendant's moral blameworthiness." Tex.Code Crim. Proc. Ann. art. 37.071, § 2(f)(4) (emphasis added). Each juror individually determines what evidence, if any, mitigates against the just imposition of the death sentence. Banda, 890 S.W.2d at 54. "Because the weighing of 'mitigating evidence' is a subjective determination undertaken by each individual juror, we decline to review the evidence for sufficiency." Colella, 915 S.W.2d at 845. Whether to give particular evidence a mitigating effect is within the prerogative of individual jurors; thus, such a determination is unreviewable.

In his second point, appellant argues art. 37.071 constitutes "cruel and unusual punishment because it creates the possibility that the death penalty will be...