Simmons v. State, 63037

• Decision Date: 30 January 1980
• Docket Number: No. 63037,63037
• Parties: James Charles SIMMONS, Jr. and Milton James Anthony, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 760

594 S.W.2d 760

James Charles SIMMONS, Jr. and Milton James Anthony, Appellant, v. The STATE of Texas, Appellee.

No. 63037.

Court of Criminal Appeals of Texas, En Banc.

Jan. 30, 1980.

Rehearing Denied March 19, 1980.

Robert G. Dohoney, Hillsboro, for Simmons.

Stephen N. Smith, Hillsboro, for Anthony.

Neal T. "Buddy" Jones, Jr., Dist. Atty., Hillsboro, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from convictions for capital murder. Appellants were charged as co-parties to the offense and were tried together. Appellant Simmons' punishment was assessed at death after the jury returned affirmative answers to the punishment issues submitted under Article 37.071, V.A.C.C.P. The jury returned a negative answer on one of the punishment issues for appellant Anthony, and his punishment was therefore assessed at life.

Three different grounds of error have been raised in each of the briefs filed by the appointed attorneys for appellants, and additional grounds of error have been raised by pro se briefs. We will first consider the grounds of error raised in the brief filed in behalf of appellant Simmons, then those in the brief filed by Anthony's attorney, and finally the grounds raised in the pro se brief.

Simmons' first two grounds of error concern the admission of testimony at the punishment stage of the trial, describing his demeanor and attitude while in jail awaiting trial as being carefree and unremorseful. Simmons contends this testimony was inadmissible because his conduct while in jail "was tantamount to, or in the nature of, a statement or confession," not admissible under Art. 38.22, V.A.C.C.P. In support of this position he cites Garner v. State, Tex.Cr.App., 464 S.W.2d 111, in which it was stated:

". . . in construing our confession statute this Court has excluded any act tantamount to or in the nature of a confession and to any unwarned statement even though it lacks the essential elements of a confession."

In the early case of Nolen v. State, 14 Tex.App. 474, the Court recognized the rule that an act may be tantamount to a confession, and there stated:

"Mr. Wharton says that 'confessions may be by acts as well as words ' (Whart.Cr.Ev., Sec. 683); and even silence, under certain circumstances, is taken as a confession. (Id., sec. 679.) Suppose a prisoner charged with murder is asked the question 'Are you guilty of murder?' and instead of saying 'I am' he makes an affirmative movement of his head. Would this movement of the head be admissible evidence, while his confession by words would be inadmissible? . . . We are unable to perceive the reason of the rule which admits the acts while it excludes the words. Acts, it is said, speak louder than words, and this being generally true, they should be regarded as confessions, as much so as words, and the law does so regard them. Acts are but a kind of language, expressing the emotions and thoughts of the person performing them, more forcibly and convincingly sometimes than words, but still, like words, only a medium through which the inward feelings, thoughts or intents of the person are outwardly indicated."

Later, in Lasiter v. State, 49 Tex.Cr.R. 532, 94 S.W. 233, the Court held:

"It has been well settled in this state, at least since Nolen's Case, 14 Tex.App. 474, 46 Am.Rep. 247, that the acts of a party under arrest, without being warned, when they tend to incriminate are interdicted by the statute (now Art. 38.22, supra) which prohibits the use of confessions."

While it cannot be denied that Art. 38.22, supra, applies to acts tantamount to a confession, it does not follow that every act while in custody is for that reason subject to the admissibility requirements of that statute. The simple fact is that Simmons' behavior while in custody that was the basis for the testimony objected to here simply was not tantamount to a confession. Quite to the contrary, the significance of that behavior for the jury's deliberations on punishment was totally dependent upon the premise, proven at the then completed first stage of the trial, that he was guilty of the offense. It could as well be argued that Simmons' demeanor while in custody during the trial, as observed by the jurors, would be subject to the same objection, since the jurors could also consider those observations in deciding whether or not he was remorseful or carefree. We hold the testimony presented here was not subject to the objection urged, and overrule the first two grounds of error presented by appellant Simmons.

In the remaining ground of error raised by Simmons' attorney, it is contended that the opinion of a former county attorney concerning Simmons' future dangerousness should have been excluded. This same issue was raised in a ground of error in the recent case of Esquivel v. State, 595 S.W.2d 516 (1980) and was overruled. For the reasons well stated in that opinion we likewise overrule the ground of error here.

We turn now to the grounds of error raised by counsel in appellant Anthony's case.

In the first ground of error it is asserted reversible error was committed when the trial court refused his requested charge number three. The charge requested was on the issue of whether the killing was on an independent impulse by Simmons, and not in furtherance of the conspiracy between the two to commit robbery upon the deceased. The viability of this doctrine under the present Penal Code was recognized in Skidmore v. State, Tex.Cr.App., 530 S.W.2d 316, 318, and Binyon v. State, Tex.Cr.App., 545 S.W.2d 448, 451, n. 2. The Practice Commentary to the Penal Code, discussing Sec. 7.02(b) thereof (under which appellant Anthony's criminal responsibility for this murder was charged), observes:

". . . membership in a conspiracy has been invoked as the theoretical basis of criminal responsibility for the conduct of another, even if the other's offense was not the object of the conspiracy. . . .

"Subsection (b) appears to add a new requirement that the uncontemplated offense be committed in furtherance of the conspiracy's object felony which should contract somewhat the scope of vicarious responsibility. . . . To hold a conspirator as a party for an offense he didn't perpetrate, therefore, the state must prove not only that he ought to have foreseen commission of the offense . . . , but also that it was committed to achieve the conspiracy's objective."

The independent impulse defense, as applicable to Sec. 7.02(b) prosecutions, rests on creation of a reasonable doubt that the offense charged was not committed "in furtherance of the unlawful purpose" (Sec. 7.02(b), supra) of the conspiracy. Where some evidence is presented that might support such a reasonable doubt on the issue, a jury charge on the defensive matter should be given. In this case we need not decide whether the issue was raised, however, because the charge actually given was adequate to protect appellant Anthony's rights.

In submission of appellant Simmons' case to the jury, the court included a charge on both capital murder and the lesser included offense of murder. The charge on murder, in applying the law to the facts, turned essentially on the issue of whether the murder was committed in furtherance of the robbery:

"If you find from the evidence beyond a reasonable doubt that on or about the 4th day of January,...