NO. 73,033









Johnson, J., filed a concurring opinion, in which Price, Holland and Womack, JJ., joined.

C O N C U R R I N G  O P I N I O N

I concur only in the judgment affirming the conviction and sentence. I write separately to explain my reasons for doing so.

In point of error thirteen, appellant alleges that the State failed to prove beyond a reasonable doubt the probability that appellant would constitute a continuing threat to prison society for forty years and/or that he would constitute a continuing threat to free society if he were released in forty years. The trial court did instruct the jury on parole eligibility. In reviewing the sufficiency of the evidence supporting the future dangerousness issue, we ask whether, in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.2d 560 (1979); Chambers v. State, 866 S.W.2d 9, 16 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100, 114 S. Ct. 1871, 128 L. Ed.2d 491 (1994). (1) "As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society." Morris v. State, 940 S.W.2d 610, 613 (Tex. Crim. App. 1997), cert. denied, 520 U.S. 1278, 117 S. Ct. 2461, 138 L. Ed.2d 218 (1997). A jury can rationally infer future dangerousness from the brutality of the offense alone. Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim. App. 1995). Viewed in this light, the evidence adduced at trial supported an affirmative finding on future dangerousness.

In a statement proffered at trial, appellant confessed that he and his wife, Sharon, argued on Monday and Tuesday, April 6 and 7, 1997, about his unemployment. On Wednesday, she told appellant that she intended to file for divorce. She refused to talk to him on the phone at work that day. According to appellant's statement, "That's when I made up my mind to just take her out, because I felt like the reason she was leaving me was unnecessary and there was no just cause for it."

Later on Wednesday, appellant's step-daughter, Sonny, returned home at 2:30 p.m., and appellant called her into the master bedroom to discuss the divorce with her. When Sonny expressed indifference about the divorce, appellant choked her with his forearm. He then hid her body in her bed. When Sonny's sister, Ericka, returned home at 2:55 p.m., appellant also called her into the master bedroom to discuss the divorce with her. Ericka told appellant that she would love him regardless of the divorce. When Ericka approached appellant to hug him, appellant choked her to death, then placed her in her bed. According to appellant, "[t]hat was cleaning up behind a wrong that I had already did."

Shortly thereafter, Sharon phoned appellant and asked him to pick her up from work. When she asked the whereabouts of the girls, appellant told her that Sonny had stayed late at school and that Ericka had gone to visit her army recruiter. Sharon checked on the girls when she arrived home and thought they were asleep. She asked appellant not to wake them because they had stayed up late the night before. After telling appellant that she still intended to divorce him, appellant choked her to death, as well. He then pawned her sewing machine and got high on drugs.

During the punishment phase of appellant's trial, the State introduced the testimony of Wanda Wallace, the grandmother of three of appellant's children. Wallace testified that appellant dated Wallace's daughter, Shernel Benson, and fathered three children by Benson. (2) During February of 1989, appellant introduced Benson to drugs, taking Benson and their three-year-old daughter, Stephanie, over to a "drug house." Wallace went to the "drug house" herself to retrieve Stephanie and returned to her home with the child. When Wallace arrived home, Wallace's husband and father were charging a car battery with jumper cables. Wallace returned the jumper cables to the trunk of the car and walked back between the car and the van. Her sister called, "[L]ook out, he got a gun," and appellant fired a pellet at Wallace and hit her car trunk. Appellant's second shot struck Wallace's father in the face and ear. The third shot went over Wallace's head and hit the windows of the apartment behind her. Appellant was charged with the felony offense of injury to the elderly and received ten years in the Texas Department of Criminal Justice -- Institutional Division. Finally, Wallace testified that when Benson became pregnant with their first child, appellant was married to another woman. Appellant's wife later died.

Although appellant was perturbed about his impending divorce, his state of mind does not temper the commission of a triple murder. Disguising the girls' deaths and lying to their mother about their whereabouts were deliberate acts calculated to conceal his actions. Further, his determination to kill Sharon on the morning after she told him that she intended to file for divorce exhibited forethought and deliberateness.

These factors, coupled with appellant's prior criminal record, including his attempt to shoot his children's grandmother, are evidence of an escalating pattern of violence. We have held previously that "an escalating pattern of disrespect for the law" supports a finding of future dangerousness. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Appellant has failed to undermine the sufficiency of the evidence supporting the future dangerousness issue.

In his first point of error, appellant argues that police arrested him without an arrest warrant in violation of Chapter 14 of the Texas Code of Criminal Procedure, thereby rendering appellant's confession and the fruits thereof inadmissible. (3) Following a hearing on a motion to suppress on these grounds, the trial court found appellant's statement admissible. We review a trial court's decision at a suppression hearing to admit or exclude evidence under a standard of abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). We will not disturb factual determinations made by the trial court at a hearing on a motion to suppress evidence if the record supports its findings. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). While we defer to the trial court's findings based upon the credibility and demeanor of the officers testifying at the suppression hearing, we also consider the testimony of appellant, who testified for the first time at trial, to determine de novo the legality of appellant's arrest. See Guzman, 955 S.W.2d at 89 ("appellate courts may review de novo 'mixed questions of law and fact'").

At the suppression hearing and at trial, several officers who were present at the crime scene and at the stationhouse on the day after the murders recounted the events leading up to appellant's confession. Appellant encountered law enforcement officials shortly after he arrived at the crime scene at 9:40 a.m. on April 9, 1997. Upon his arrival, the victims' family members cursed appellant and accused him of committing the victims' murders. Accordingly, Officer Gutierrez intervened and asked the family members to leave the area while he frisked appellant, then placed him in the back seat of a patrol car without handcuffs. While Gutierrez removed appellant from the vicinity of the victims' enraged family members, Detective Rossi and several other deputies were investigating the crime scene in the apartment upstairs. During his first cursory inspection of the apartment, Rossi discovered a note which read: "I love Sharon, Sonny, Ericka. I could not take care of my family. I don't have a job. I gave them back to God. He and they will understand. James." Rossi heard that the husband of one of the victims had arrived downstairs, and shortly thereafter Rossi went downstairs and visited with appellant in the back seat of the patrol car. Appellant asked Rossi if he was under arrest, to which Rossi replied that he was not under arrest. Rossi asked appellant for his written consent to search the apartment and appellant's car, and appellant gave it. Appellant also agreed to give Rossi a statement at the sheriff's office located at 601 Lockwood. Between twenty and forty minutes later, another officer removed appellant from the first patrol car and handcuffed him. Rossi explained to appellant that the officer was handcuffing him according to police procedure and for security purposes. (4) Appellant indicated that he understood.

After leaving the scene and arriving at the Lockwood office, the officer removed appellant's handcuffs. Detective Burch then read appellant his rights. Between 11:00 a.m. and 1:30 p.m., appellant gave a handwritten statement and a typewritten statement, both of which exonerated him, and both accompanied by Miranda warnings. (5) As appellant signed the written warnings, he asked Burch if he was in custody. Burch replied that appellant was a suspect, but did not say that appellant was in custody. At some point following the statements, Burch showed appellant to the bathroom. After reading appellant's two statements, Rossi asked appellant to give head hair, pubic hair, fingernail scrapings, blood and saliva samples, and his clothes for analysis. Appellant agreed.

Between 2 p.m. and 4 p.m., Ernie Hulsey administered a polygraph examination to appellant at the Lockwood office with appellant's consent, then confronted appellant with his conclusion that the test results showed that appellant was untruthful on relevant questions.

From about 7 p.m. to 11 p.m., appellant conversed with Detective Pinkins about issues unrelated to the facts of the case. At about 11 p.m., Pinkins asked appellant about some aspects of the case, in particular, the note found at the scene of the crime. Appellant admitted that he wrote it. Around midnight, Detective Brown relieved Pinkins for forty-five minutes to an hour while Pinkins took a break, then called Pinkins back into the interview room when appellant announced that he wished to confess. Appellant made his confession at 1:10 a.m., again with the accompaniment of written Miranda warnings. At no time during the day did appellant ask for a lawyer, ask to terminate any interview, or ask to leave the stationhouse.

After hearing the testimony of members of the Harris County Sheriff's Department, at both the suppression hearing and trial, appellant testified, for the first time, at trial. According to appellant's version, police refused to allow appellant to leave the patrol car at the crime scene. Further, a detective got into the car with appellant and asked him to sign a consent form purportedly allowing the police to remove his wife's and step-daughters' bodies from the apartment. Appellant did not read the contents of the consent form before he signed it. Appellant repeatedly asked permission to go upstairs to his apartment, which police denied. When police removed appellant from the first patrol car to handcuff him, they told appellant that he was under arrest. After appellant arrived at the police station, a detective, possibly Detective Burch, handcuffed appellant to a bench. The same detective asked appellant to write down his whereabouts during the crime. Appellant then asked the detective where his lawyer was, and the detective told appellant that he did not need a lawyer. The detective had not yet read appellant his rights. Appellant finally gave a statement without the presence of a lawyer because the detective told appellant repeatedly that he was not under arrest. At no point did the detective read appellant his rights, although appellant did sign a waiver of his rights before handwriting his first statement.

According to appellant, about forty-five minutes after taking his handwritten statement, Detective Burch moved appellant to an interview room for further questioning. Detective Rossi and four other officers entered the interview room, showed appellant the note left at the crime scene, and asked appellant to explain it. Appellant told officers that "it was a prayer that [appellant] used to pray." The officers then told appellant that he was a suspect. Appellant stated that he became upset by the questioning and repeatedly asked the officers if he could leave. The officers refused to allow appellant to leave because they wanted to continue questioning him. They questioned appellant for forty-five minutes to an hour.

After the initial period of questioning, Detective Rossi and other officers returned to the interview room and asked appellant if he was involved in a cult murder in California, comparing the murder in California to the instant case. One of the other detectives then told appellant that "when [the detective] walked in the [bedrooms at the apartment] that the bodies had called out to him that [appellant] had done it, [appellant] had done it, for [the detective] to help them out." Appellant again asked to leave the interview room. The officers refused, telling him to calm down. They continued to question him about the cult murder in California.

Later, a detective asked appellant for some specimens from appellant which appellant did not agree to give. Finally, appellant testified that he did not author the statement confessing to the crime but that Detective Brown deceived him into signing it by telling him it was just a typed version of his previous handwritten statement, even though the new statement was considerably longer than the first statement and began differently. The detective encouraged appellant to sign the statement so he could take appellant home. After appellant signed the statement, the detective took appellant to jail.

Given the evidence, I believe that the police properly arrested appellant without a warrant. Under Tex. Code Crim. Proc. art. 14.03(a)(4), a peace officer may arrest, without warrant, "persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household." We have held that the test for probable cause for a warrantless arrest is "[w]hether at that moment the facts and circumstances within the officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense." Rance v. State, 815 S.W.2d 633, 635 (Tex. Crim. App. 1991) (citing Stull v. State, 772 S.W.2d 449, 451 (Tex. Crim. App. 1989)). Upon discovery of the note at the crime scene by Detective Rossi and other deputies, probable cause arose to arrest its author. When Rossi also learned that appellant was both its author and the husband of one of the victims, the language of art. 14.03(a)(4) vested him with the statutory right to arrest appellant without a warrant. Therefore, appellant's confession stemmed from a proper warrantless arrest, consummated possibly before appellant left the crime scene and certainly before he confessed.

In his second point of error, appellant argues that the trial court erred in refusing his request for an art. 38.23 instruction, which would instruct the jury to disregard appellant's written statement if they found that police had obtained it as a product of an illegal warrantless arrest. Since, as explained above, I believe that appellant gave his confession following a proper warrantless arrest under art. 14.03(a)(4), the confession was admissible as the product of a legal arrest.

In points of error three, four, and five, appellant argues that the mitigation special issue violates the Eighth Amendment, because (1) it omits a burden of proof, (2) we cannot conduct a meaningful appellate review of the jury's determination, and (3) we will not review the mitigation issue for sufficiency of the evidence. As appellant acknowledges, we have heretofore foreclosed each of these arguments relating to the mitigation special issue. See, e.g., Anderson v. State, 932 S.W.2d 502, 508 (Tex. Crim. App.1996), cert. denied, 521 U.S. 1122, 117 S. Ct. 2517, 138 L. Ed.2d 1019 (1997); McFarland v. State, 928 S.W.2d 482, 498-99 (Tex. Crim. App.1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed.2d 851 (1997); Eldridge v. State, 940 S.W.2d 646, 652_53 (Tex. Crim. App.1996).

In points of error six and seven, appellant argues that requiring ten votes for the jury to return a negative answer to the first or second special issue violates the Eighth Amendment. Appellant tangentially complains that "truth-in-sentencing" mandates an instruction on the default penalty of life imprisonment to avoid jurors' speculation on the consequences of a hung jury. However, we have previously upheld as constitutional the instructions in art. 37.071, sections 2(d) and 2(f), known as the "10_12" rule. See, e.g., McFarland, 928 S.W.2d at 519. Further, we have previously held that "truth-in-sentencing" does not mandate that the jury receive information as to the "default penalty." See, e.g., McFarland, 928 S.W.2d at 519.

In points of error eight and ten, appellant alleges that the Eighth Amendment erects a per se bar to the admission of victim impact evidence for the purpose of mitigation in the present Texas death penalty scheme; and consequently, that trial counsel rendered ineffective assistance in violation of federal and state constitutions by failing to renew his objection during the punishment phase to the admission of victim impact evidence.

During the punishment phase, the State called Ira Lane Mayes, the grandmother of Ericka and Sonny Mayes. Mayes testified to the reaction of her son, Johnny Melvin Mayes, upon hearing the news of his daughters' murders, that she and her family had to physically hold him to keep him from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment. She further testified that her son rolled on the ground of her home and screamed, "[J]ust bury me in a hole, I can't take it, I don't have no children, I don't have anybody anymore." Since the death of the girls, her son had become forgetful, moaned frequently in the morning and at night, and stood in the dining room turning around and around the night before trial.

The Supreme Court has held that if individual states choose to permit the admission of victim impact evidence and prosecutorial argument on victim impact evidence, "the Eighth Amendment erects no per se bar," regardless of the death penalty scheme employed by the individual state. Payne v. Tennessee, 501 U.S. 808, 826-28, 111 S. Ct. 2597, 2609, 115 L. Ed.2d 720 (1991). As appellant acknowledges, we have previously held victim character and impact evidence admissible in the context of the mitigation special issue, "to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant's mitigating evidence." Ladd v. State, 3 S.W.2d. 547, 571 (Tex. Crim. App. 1999) (citation omitted), cert. denied, ___ U.S., ___ S. Ct. ___, ___ L. Ed.2d ___ (April 17, 2000). As such, appellant's claim of ineffective assistance of counsel also fails.

In his ninth point of error, appellant asserts that we should grant him a new trial on punishment and offer him the option of waiving submission of the mitigation issue per dicta in Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1466, 143 L. Ed.2d 550 (1999).

Appellant claims that the law existing at the time of his punishment trial, five months prior to this Court's decision in Mosley, prohibited him from waiving the mitigation issue, an option he would have exercised to foreclose the State's introduction of victim impact evidence.

Recently, however, we noted that "[t]his Court's opinion in Mosley did not create. . .a new rule regarding waiver of the mitigation issue. To date, this Court has not decided whether a capital defendant can waive that issue. The statement in Mosley [as to that issue] was not necessary to the holding in that case and is therefore dicta." Tong v. State, ___ S.W.2d ___, ___, No. 73,058, slip op. at 6 (Tex. Crim. App. April 13, 2000).

In point of error eleven, appellant argues that trial counsel rendered ineffective assistance at punishment for failing to object to the prosecutor's argument that jurors should consider victim impact evidence in answering the future dangerousness special issue. To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674

(1984). "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. A defendant must overcome the strong presumption that an attorney's actions were sound trial strategy. Id.

During closing argument following the punishment phase, the prosecutor addressed each of the special issues and the corresponding evidence presented at the punishment phase. In concluding his discussion of the future dangerousness issue, he argued without objection:

We want you to consider the effect this crime has had on the victims, not only Ericka and Sonny and Sharon, but Johnny Melvin Mayes, their father. You could imagine how he feels now. How he must have felt that day when he found out that his only two daughters, teenage daughters were gone. He would never see them again, he would never talk to them again, wouldn't see Ericka graduate, wouldn't see them get married, wouldn't see them grow up and have children, would never experience any of those joys that we all take for granted because [appellant] took all of that away from him.

We all hope that when we have kids, I know a lot of you have had kids already, that you're going to go before they do. How tragic it is for a parent to have to lose a child while they are still alive. Johnny Melvin Mayes had to go through that thanks to [appellant], and he lives with the loss of his two daughters everyday. You know that from what his own mother told you earlier today. We certainly want you to consider how this crime has affected Mr. Mayes.

These statements fell at the end of a long discourse on appellant's lack of remorse for the murders, as well as his lack of remorse for the effect of the murders on his victims' family members. While we have observed that victim impact evidence is generally relevant only to the mitigation issue, we have also noted that "[v]ictim impact and character evidence of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability." Mosley, 983 S.W.2d at 263 & 261 n.16; see also Ford v. State, 919 S.W.2d 107, 112 (Tex. Crim. App. 1996) ("Remorselessness and disregard for human life have been considered in determining the sufficiency of the evidence to support a jury finding of probability of committing criminal acts of violence that would constitute a continuing threat to society") (citations omitted). Because the prosecutor's argument discussed victim impact evidence of which appellant was aware at the time he committed the murders of Sonny and Ericka -- namely, that their deaths would grieve their father -- it arguably pertained to the issue of future dangerousness. Therefore, appellant has not shown that his attorney rendered deficient performance.

In point of error twelve, appellant argues that the trial court erred by overruling a defense objection to the prosecutor's argument that compared the value of appellant's life to the lives of the victims. Toward the end of closing argument following the punishment phase, the prosecutor admonished the jury:

No reason to give this person a life in the penitentiary sentence because he has worked hard in this incident to earn the verdict you're going to give, the verdict the law demands, the verdict the facts demand and the verdict you will always be comfortable with whenever you rise, whenever you set, whenever you go about your business you will be comfortable that you made the right decision to give this man a life sentence to say there are mitigating factors there or to say he is not a continuing threat is to mean that his life is more important than Sharon Jackson's, than Ericka or Sonny's. [Sic].

Immediately following this statement, defense counsel objected on the grounds that the prosecutor was "asking the jury to make a comparative judgment based on value of life on victim versus the defendant," which the trial court overruled.

Citing Payne v. Tennessee, supra, appellant argues that a prosecutor may not compare the life worth of a victim with the defendant's. Appellant misinterprets Payne's holding. The concern at issue in Payne was whether admission of victim impact evidence would encourage "a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy." Payne, 501 U.S. at 823, 111 S.Ct. at 2607. We have echoed a similar concern. See Mosley, 983 S.W.2d at 262. However, the prosecutor's argument in the instant case in no way compared the worths of the victims; instead, it encouraged the jury to assess the death penalty against a defendant who had killed his victims. The authority appellant cites does not stand for the proposition he espouses.

In appellant's fourteenth point of error, he argues that the trial court erred in denying his pre-trial motion to introduce testimony of his family and friends regarding their feelings on the prospect of a death sentence and the impact his execution would have on them. Because the crux of this testimony necessarily focuses on whether the witnesses believe that appellant should live or die, it does not pertain to appellant's background, character, record, or the circumstances of the offense. See Penry v. Lynaugh, 492 U.S. 302, 328, 109 S. Ct. 2934, 2949, 106 L. Ed.2d 256 (1989); Goff v. State, 931 S.W.2d 537, 555 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1171, 117 S. Ct. 1438, 137 L. Ed.2d 545 (1997). It is therefore irrelevant to the deathworthiness of the defendant. Fuller v. State, 827 S.W.2d 919, 936 (Tex. Crim. App. 1992) ("since that specific desire does not pertain to appellant's background, character, or record, or the circumstances of the offense, the trial court did not err in prohibiting it"), cert. denied, 509 U.S. 922, 113 S. Ct. 3035,

125 L. Ed.2d 722 (1993). Accordingly, the trial court did not err in prohibiting this testimony.

Based on the foregoing, I concur only in the judgment affirming the conviction and sentence.

Johnson, J.

Date Delivered: December 13, 2000


1. 1The jury may also employ a non-exclusive list of factors to assist in assessing the future dangerousness issue, including:

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

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

3. the forethought and deliberateness exhibited by the crime'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


6. whether the defendant was acting under duress or domination of another at the time of the offense;

7. psychiatric evidence; and

8. character evidence.

Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).

2. 2These children were not the victims in the instant case.

3. 3Chapter 14 of the Texas Code of Criminal Procedure [Arrest Without a Warrant] delineates the cases in which a "peace officer or any other person, may, without a warrant, arrest an offender" and the required procedures.

4. 4Rossi later explained on cross-examination that the officer had handcuffed appellant because he was the only person transporting appellant to the office, because of appellant's size at 6' 6" and 305 pounds, and because of the scene of rowdy people.

5. 5Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).