Penry v. State

Citation691 S.W.2d 636
Decision Date09 January 1985
Docket NumberNo. 68882,68882
PartiesJohnny Paul PENRY, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. Trial was in Trinity County following change of venue from Polk County. After finding appellant guilty of capital murder, the jury returned affirmative findings to the three special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Appellant was convicted of murdering P____________ C____________, a married female, on October 25, 1979, by stabbing her with a pair of scissors "in the course of committing and attempting to commit the offense of aggravated rape" of the said victim.

In his first ground of error, appellant complains that the trial court erred by failing, after timely objection, to instruct the jury on the law of voluntary manslaughter.

Appellant did not testify at trial. His two written confessions, Exhibits 47 and 48, were introduced into evidence by the State. Both confessions indicate that appellant forced his way into the deceased's house, grabbed her around the neck, and held his open pocket knife to her throat. After a struggle during which appellant hit the deceased, knocked her to the floor, and shoved her against a stove causing her face to bleed, the deceased stabbed the appellant with some scissors.

Appellant knocked the scissors out of the deceased's hands. He dragged her into the bedroom. After kicking and hitting her repeatedly and "stomping" her once, appellant had intercourse with the deceased for thirty minutes. Appellant next retrieved the scissors from where they had landed, sat on the deceased, and stabbed her in the chest with the scissors.

Appellant contends that the foregoing facts and the following statement from the second confession raise the issue of voluntary manslaughter: "It was while I was f____ing her that I decided to kill her with the scissors since she stabbed me with them."

In his first confession appellant related the following: "I went on and f____ ed her on the bedroom floor and then after I got through I got up and walked over to the kitchen door where the scissors had landed and picked them up. I walked back to her and got down on her. I sat down on her stomach and I told her that I loved her and hated to kill her but I had to so she wouldn't squeal on me." (Emphasis added.)

In his second confession appellant related the following: "During the last 3 weeks I thought about the Chick [deceased] a lot. Then on the morning of October 25, 1979, which was yesterday, I got up and went to town somewhere around 8 or 9 a.m. I saw a girl in City Hall who reminded me of the Chick. I decided I would go over to the Chick's house and get me a piece. I also wanted to get the money that she had in her purse. I knew that if I went over to the Chick's house and raped her that I would have to kill her because she would tell who I was to the police and I didn't want to go back to the pen." (Emphasis added.)

Further on in the confession appellant stated: "I came back and sat on her stomach. I told her that I was going to kill her and that I hated to but I thought she would squeal on me." (Emphasis added.)

V.T.C.A. Penal Code, Sec. 19.04, states:

"Sec. 19.04. Voluntary Manslaughter.

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.

"(b) 'Sudden passion' means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

"(c) 'Adequate cause' means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

"(d) An offense under this section is a felony of the second degree." 1

Appellant clearly failed to raise the issue of voluntary manslaughter under our case law. Nowhere in either confession or elsewhere does appellant indicate that he was acting under "the immediate influence of sudden passion" when he killed the deceased or that he was motivated by "anger, rage, or resentment."

In Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979), we found no error in the trial court's refusal to charge on voluntary manslaughter even though the deceased had gone over to the appellant's house and hit and stabbed him prior to being shot by the appellant. In Roberts v. State, 590 S.W.2d 498 (Tex.Cr.App.1979), discussing Luck, we noted: "In Luck the Court could not find evidence which would raise the issue of voluntary manslaughter, pointing out that at no time did Luck, who did not testify, indicate in his statement recounted by a police officer, 'that he was in fear of the deceased.' " (Emphasis added.)

In the instant case, not only is there no indication of appellant's "anger, rage, resentment, or terror," but the facts are far less suggestive of such phenomena than they were in Luck.

In Luck, the deceased initiated the difficulties leading to his death by going over to the appellant's house with a gun and assaulting appellant. Here, the evidence shows unequivocally that appellant initiated the entire criminal episode leading to the deceased's death, and that appellant had committed an aggravated rape of the deceased before he killed her. 2 Appellant's first ground of error is overruled.

In his second ground of error, appellant complains that State's Exhibit No. 47 (his confession to Officer W.F. Smith) was improperly admitted over timely objection, in that the warnings typed on the confession were not in compliance with Art. 38.22, Sec. 2, V.A.C.C.P. 3

Specifically, appellant complains of the typed warning on the confession, "(1) that I have a right to have a lawyer present to advise me either prior to any questioning or during my questioning; (2) that if I am unable to employ a lawyer I have the right to have a lawyer appointed to counsel with me prior to or during any questioning ..." (Emphasis added.)

Art. 38.22, supra, literally speaks of the right to have a lawyer "advise" the accused and speaks of the right to a lawyer, "prior to and during any questioning." (Emphasis added.)

Appellant contends that the discrepancy between the typed warnings and the statute constitutes a violation of the terms of the statute and renders the confession inadmissible.

We confronted a similar problem in Eddlemon v. State, 591 S.W.2d 847 (Tex.Cr.App.1979). There, as in the instant case, the language typed on the confession did not precisely track Art. 38.22, supra, but, "All of the rights listed in that statute were included in the warning given to appellant by the police." Eddlemon v. State, supra at 850.

A warning which conveys on the face of the statement, in only slightly different language, the exact meaning of the statute is sufficient to comply with the statute. We see no substantive distinction between the words "advise" and "counsel" as used in the context of these warnings.

Further, we reject appellant's complaint that by using the phrase, "prior to or during any questioning" the State in effect informed appellant that he did not have the right to an attorney "prior to and during any questioning." (Emphasis added.) While it would have been the better practice to track the current statute precisely, this apparently inadvertent retention of the former statutory language did not harm the appellant. See also Darden v. State, 629 S.W.2d 46 (Tex.Cr.App.1982).

Appellant contends that the requirement of a showing on the face of the statement that appellant knowingly, intelligently and voluntarily waived the rights set out in the warnings was not met. The last paragraph of the confession contains the following language: "I further affirm that I knowingly, intelligently and voluntarily waived the above rights prior to and during the making of this statement." Appellant's contention is without merit.

Appellant also asserts that Art. 38.22, Sec. 2(A), supra, has not been complied with since the confession did not adequately show that the accused received the proper magistrate's warning provided in Art. 15.17, V.A.C.C.P. We need not reach this issue. Under the provisions of Art. 38.22, supra, the face of the statement must show that the accused received the magistrate's warning or the proper warning from the person who took the statement. Since we have held that the printed warning on the confession received from the officer who took the statement was adequate under Art. 38.22, supra, the question of whether the recitation of the magistrate's warning was adequate is rendered irrelevant. Appellant's second ground of error is overruled.

In his third ground of error, appellant complains that the typed warning on his first confession was invalid under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant incorporates by reference his arguments as to ground of error number two. In addition, appellant notes that the typed warning administered by Officer Smith did not state that appointed counsel would be present, but rather stated that appointed counsel would "counsel with" appellant.

In the recent case of California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 68 L.Ed.2d 696 (1981), the United States Supreme Court, faced with a similar issue, stated:

"This Court has never indicated that the 'rigidity' of Miranda extends to the precise formulation of the warnings given a criminal defendant ...

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