TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 0955583, HONORABLE JON N. WISSER, JUDGE PRESIDING
David Reynolds, Jason Ishee, and Watt, each of whom was eighteen or nineteen years old, spent the late afternoon of October 31, 1995, loitering outside an Austin shopping mall. As night fell, Watt and Ishee agreed on a scheme to steal Reynolds's ten-year-old car. They asked Reynolds to drive them to an apartment complex, ostensibly to purchase marihuana. At the complex, they lured Reynolds to the rear of the building where they beat him to death with their fists and feet, and with a large rock. Watt and Ishee took Reynolds's car and five dollars they found in his pocket, then drove to Ishee's girlfriend's house. Ishee showed the girl the blood on his hands and bragged that he had killed someone. Watt and Ishee spent the rest of that night and the following day driving around Austin in Reynolds's car, then left town. They were arrested on November 3 in Wharton, still driving the stolen vehicle. Each man gave a written statement to the police admitting the robbery-murder, blaming the other as the chief actor, and denying an intent to kill Reynolds. (1)
In his first point of error, Watt contends the district court erred by "failing to grant a mistrial in order to sever appellant's cause." Prior to trial, Watt moved to sever his prosecution from that of his codefendant Ishee. The motion was premised on the assumption that the statement he gave to the police would be edited to remove references to Ishee before being admitted in evidence, thus avoiding Bruton error. See Bruton v. United States, 391 U.S. 123, 135-36 (1968) (defendant's confrontation right violated by admission at joint trial of nontestifying codefendant's confession that incriminates both defendants); Richardson v. Marsh, 481 U.S. 200, 211 (1987) (Bruton error avoided by redacting codefendant's confession to remove references to defendant). It was Watt's contention that he would be unable to offer the redacted portions of his statement asserting Ishee's greater culpability, and thus would be denied the opportunity to assert his allegedly lesser culpability. See Finley v. State, 917 S.W.2d 122, 125-26 (Tex. App.--Austin 1996, pet. ref'd) (if rule of optional completeness conflicts with codefendant's confrontation right, constitutional right must prevail over evidentiary rule). The severance motion was withdrawn at a pretrial hearing after the prosecutor stated, "We're not planning to redact any portion of anyone's statement; not a sentence, not a period, either one of their statements."
During trial, the State offered in evidence each defendant's complete, unedited written statement to the police. Watt objected to the admission of Ishee's statement on Bruton grounds; Ishee objected to Watt's statement on the same grounds. The court responded by ordering both statements edited to remove references to the codefendant. Watt then renewed his motion to sever and requested a mistrial as to himself, so that he might be tried separately. The motions were overruled. Watt contends the court's rulings denied him due process by preventing him from offering mitigating and exculpatory evidence to the jury, by which we assume he means those redacted portions of his written statement in which he described Ishee's role in the murder.
Watt's brief on appeal contains no argument or citation to authority in support of his assertion that his due process rights were violated. The attempt to renew the motion to sever in the middle of trial was untimely. See Foster v. State, 652 S.W.2d 474, 477 (Tex. App.--Houston [1st Dist.] 1983), aff'd, 693 S.W.2d 412 (Tex. Crim. App. 1985). And rather than denying the defendants due process, the redaction of the statements was necessary to insure their due process rights. See Pointer v. Texas, 380 U.S. 400, 403 (1965) (Fourteenth Amendment incorporates confrontation right). The district court was required to redact all references to Watt from Ishee's statement after Watt asserted his constitutional confrontation right. Similarly, the court was required to redact all references to Ishee from Watt's statement after Ishee asserted his confrontation right. No error is presented. Point of error one is overruled.
Watt next asserts that his trial counsel's handling of the severance issue denied him effective assistance. To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance must be judged in its totality, rather than by isolating individual errors or omissions. Oestrick v. State, 939 S.W.2d 232, 237 (Tex. App.--Austin 1997, pet. ref'd). We must avoid the distortions of hindsight, and evaluate counsel's conduct from his perspective at the time of trial. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). A defendant asserting an ineffective assistance claim must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This burden is made more difficult when, as in this cause, the effectiveness issue was not raised in a motion for new trial and there is no record focused on the conduct of counsel. See id. at 772 (Baird, J., concurring).
Watt urges that counsel should not have withdrawn the motion to sever prior to trial, asserting that he was "entitled to a separate trial" and that "the trial court probably would have granted" the motion had it not been withdrawn. Alternatively, Watt argues that his attorney should not have withdrawn the motion without first obtaining a written stipulation, presumably from Ishee's attorney, that Watt's complete, unedited statement would be admitted in evidence.
We are not persuaded that the course of trial would have been different if Watt's attorney had pursued the severance issue in the manner Watt now suggests. Watt's assertion that he was "entitled" to a severance, and that the district court would have granted the motion to sever had it not been withdrawn, is not supported by the record. While a joint trial presented potential Bruton error, this could be and was avoided by redacting the confessions. Ishee's attorney refused to waive his client's confrontation right during trial, and we have no reason to believe he would have been willing to do so in advance of trial. Watt has not carried his burden of demonstrating ineffectiveness of counsel. Points of error two and three are overruled.
By three points of error, Watt contends his written statement should have been suppressed because it was obtained in violation of his rights under the constitutions and laws of the United States and Texas. See U.S. Const. Amends. V, XIV; Tex. Const. art. I, §§ 10, 19; Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979 & Supp. 1999). We quote Watt's argument in support of these contentions in full:
The record shows that Appellant never affirmatively waived his rights and never voluntarily made a statement. Appellant merely acquiesced in the requests of the police that he help himself out by making a statement. Because of the young age and circumstances of Appellant, he was especially susceptible to subtle trickery employed by the police. The findings of fact made by the trial court should not be given any weight because they are conclusory and insufficient.
The factual statements in Watt's argument are either unsupported or contradicted by the record. Watt did not testify in support of his motion to suppress. The State's witnesses testified that Watt was fully advised of his rights and voluntarily confessed. No error is shown. Points of error nine, ten, and eleven are overruled.
Finally, Watt contends the Texas capital murder scheme is unconstitutional insofar as it results in an automatic life sentence upon conviction if the State does not seek the death penalty. See Penal Code § 12.31(a); Code Crim. Proc. art. 37.071, § 1. Specifically, Watt asserts that capital murder defendants in such cases are denied "the right to present evidence on and have the jury consider the lesser included offense of voluntary manslaughter," that the law grants prosecutors "unbridled and arbitrary discretion to deny a defendant the right to present evidence on and have the jury consider the lesser included offense of voluntary manslaughter," and that the mandatory life sentence is cruel and unusual punishment. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, §§ 10, 15, 19. The offense of voluntary manslaughter was abolished over one year before the homicide giving rise to this cause was committed. We assume that Watt's reference to voluntary manslaughter is a reference to the "sudden passion" defense that may be raised at the punishment stage of a murder trial and that, if proved, reduces the offense to a second-degree felony. See Tex. Penal Code Ann. § 19.02(d) (West 1994).
The authority to define crimes and prescribe their punishments is vested in the legislature. Ex parte Granviel, 561 S.W.2d 503, 515 (Tex. Crim. App. 1978). In the exercise of this authority, the legislature may determine that the penalty for capital murder is either death or life imprisonment. Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.--El Paso 1995, no pet.); see Allen v. State, 552 S.W.2d 843, 847 (Tex. Crim. App. 1977) (State may prosecute minor for capital murder even though only possible punishment is life imprisonment). A sentencing scheme that calls for an automatic sentence of life imprisonment, rather than an individualized punishment determination, does not violate the Eighth Amendment guarantee against cruel and unusual punishments. Harmelin v. Michigan, 501 U.S. 957, 995 (1991). (2) There is no significant difference between the Eighth Amendment prohibition against cruel and unusual punishments and the Texas Constitution's prohibition against cruel or unusual punishments. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
Watt argues that a defendant convicted of capital murder in a prosecution in which the State seeks the death penalty is treated more favorably than a defendant convicted of capital murder after the State has waived the death penalty. This is true, he argues, because in the former situation "the jury may favorably determine the voluntary manslaughter issue during the punishment stage." Watt does not cite authority for this argument, and we can find none. At the punishment stage of a capital murder prosecution in which the State seeks the death penalty, the jury is asked certain punishment questions, the answers to which determine whether the defendant receives the death penalty or life imprisonment. Article 37.071, § 2. The statute does not authorize the jury to assess a term of imprisonment less than life. (3) Section 12.31(a) and article 37.071, section 1, by predetermining the punishment for capital murder when the death penalty is waived, provide the maximum benefit that a defendant convicted of capital murder could receive in a contested punishment hearing before a jury. Prater v. State, 903 S.W.2d 57, 60 (Tex. App.--Fort Worth 1995, no pet.). These statutes do not violate the constitutional right to trial by jury because that right does not extend to the assessment of punishment. Allen, 552 S.W.2d at 847; Bullard v. State, 548 S.W.2d 13, 17-20 (Tex. Crim. App. 1977). Points of error four through eight are overruled.
The judgment of conviction is affirmed.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Jones and Yeakel
Affirmed
Filed: February 11, 1999
Do Not Publish
1. Watt and Ishee were tried jointly. This Court affirmed Ishee's conviction in Ishee v. State,
No. 03-97-00212-CR (Tex. App.--Austin May 14, 1998, no pet.) (not designated for publication).
2. Although Harmelin produced several opinions, five justices joined this holding.
3. If the issue is raised by the evidence, a capital murder defendant may be convicted of the
lesser included offense of murder. Penal Code § 19.03(c). If the defendant is convicted of the
lesser offense, article 37.071 does not apply and the defendant may assert sudden passion in
mitigation of punishment pursuant to section 19.02(d). This is true whether or not the State
waived the death penalty prior to trial.
tence is cruel and unusual punishment. See U.S. Const. amends. VIII, XIV; Tex. Const. art. I, §§ 10, 15, 19. The offense of voluntary manslaughter was abolished over one year before the homicide giving rise to this cause was committed. We assume that Watt's reference to voluntary manslaughter is a reference to the "sudden passion" defense that may be raised at the punishment stage of a murder trial and that, if proved, reduces the offense to a second-degree felony. See Tex. Penal Code Ann. § 19.02(d) (West 1994).
The authority to define crimes and prescribe their punishments is vested in the legislature. Ex parte Granviel, 561 S.W.2d 503, 515 (Tex. Crim. App. 1978). In the exercise of this authority, the legislature may determine that the penalty for capital murder is either death or life imprisonment. Cameron v. State, 925 S.W.2d 246, 250 (Tex. App.--El Paso 1995, no pet.); see Allen v. State, 552 S.W.2d 843, 847 (Tex. Crim. App. 1977) (State may prosecute minor for capital murder even though only possible punishment is life imprisonment). A sentencing scheme that calls for an automatic sentence of life imprisonment, rather than an individualized punishment determination, does not violate the Eighth Amendment guarantee against cruel and unusual punishments. Harmelin v. Michigan, 501 U.S. 957, 995 (1991). (2) There is no significant difference between the Eighth Amendment prohibition against cruel and unusual punishments and the Texas Constitution's prohibition against cruel or unusual punishments. Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997).
Watt argues that a defendant convicted of capital murder in a prosecution in which the State seeks the death penalty is treated more favorably than a defendant convicted of capital murder after the State has waived the death penalty. This is true, he argues, because in the former situation "the jury may favorably determine the voluntary manslaughter issue during the punishment stage." Watt does not cite authority for this argument, and we can find none. At the punishment stage of a capital murder prosecution in which the State seeks the death penalty, the jury is asked certain punishment questions, the answers to which determine whether the defendant receives the death penalty or life imprisonment. Article 37.071, § 2. The statute does not authorize the jury to assess a term of imprisonment less than life. (3) Section 12.31(a) and article 37.071, section 1, by predetermining the punishment for capital murder when the death penalty is waived, provide the maximum benefit that a defendant convicted of capital murder could receive in a contested punishment hearing before a jury. Prater v. State, 903 S.W.2d 57, 60 (Tex. App.--Fort Worth 1995, no pet.). These statutes do not violate the constitutional right to trial by jury because that right does not extend to the assessment of punishment. Allen, 552 S.W.2d at 847; Bullard v. State, 548 S.W.2d 13, 17-20 (Tex. Crim. App. 1977). Points of error four through eight are overruled.
The judgment of conviction is affirmed.