NO. 73,621







Johnson, J., filed a concurring opinion.

C O N C U R R I N G  O P I N I O N

I join the majority, except as to point of error nine, and concur in that point.

Melanie Almaguer was both a witness to the offense charged in the indictment before the jury and the victim of an offense not charged in it. Her testimony was appropriate during the guilt/innocence phase as to guilt and during the punishment phase as to future dangerousness. Her testimony and obvious physical condition were probative of those two issues. However, the intimate details of her daily life, which were introduced through the testimony of Janice Manning, had no such probative value. It seems to me that such evidence is not admissible, not because it is non-victim "victim-impact" testimony, but because it is irrelevant to the issue of future dangerousness and cumulative of the testimony of Melanie Almaguer.

Ms. Almaguer testified that appellant had fired a bullet into her head at close range and that the bullet had passed through her forehead and mouth and had lodged in her shoulder, where it remains. She testified, and the jury could see, that she is permanently paralyzed from the neck down. A reasonable juror would infer that "permanently paralyzed from the neck down" means that she had lost control of all bodily functions in that area of her body. The reasonable juror would then conclude that those functions would have to be attended to by another. The precise details of what that care required was not probative as to future dangerousness, but could be highly prejudicial.

The facts which are probative of future dangerousness are that appellant killed Brown and Hibbard, then shot Ms. Almaguer at close range, apparently without provocation, and that he chose to shoot her in the head, a wound which had a high probability of death or serious permanent disability. He intended her death. Manning's testimony added nothing substantive to that discussion. I would hold that admission of her testimony was error.

That said, I believe that the admission of Manning's testimony was harmless in this case. The facts of the case may be sufficient to establish future dangerousness. Allridge v. State, 850 S.W.2d 471, 488 (Tex. Crim. App. 19991), cert. denied, 510 U.S. 831 (1993). Beside the mere facts of the case, the state called at the punishment phase nine witnesses who testified that appellant has a history of violent behavior dating back to high school and continuing to the time of trial. There was testimony that appellant has engaged in violent behavior both in free society and while in custody. Given the other punishment evidence, it is probable that Manning's testimony, while inflammatory and irrelevant, had but a slight effect on the jury's decision.

The rest of the question of harm is the effect of the use of Manning's testimony during closing statements, during which the prosecutor urged the jury to remember the intimate details of Ms. Almaguer's toileting needs when it considered the issue of future dangerousness. Such details were irrelevant to future dangerousness and appear to be intended to inflame the emotions of the jurors. I would hold that such argument was error. Again, given the facts of the case and the evidence presented at punishment, I would find the error harmless in this case.

Johnson, J.

Date Filed: February 13, 2002