PD-0925-5 PD-925-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/22/2015 2:06:20 PM
Accepted 7/24/2015 9:32:21 AM
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA
FOR THE STATE OF TEXAS CLERK
DALTON JAMES i BENNETT, JR
AIK/A DALtON JAMES BENNETT
APPELLANT
v. COA NO. 08-13-00138-CR
TRIAL COURT N0.1244131D
THE STATE OF 1'EXAS,
APPELLEE
APPEALED: FROM CAUSE NUMBER 1244131D, IN THE DISTRICT
COURT NUMBEJt 372, TARRANT COUNTY, TEXAS; THE
HONORABLE SOOTT WISCH, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY
TEXAS BAR CARD N0.16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. "BILL" RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(817) 698-9090
(817) 698-9092, FAX
bill@billraylawyer.com
July 24, 2015
***ORAL ARGUMENT IS NOT REQUESTED**
PETITION FOR DISCRE'rrlONARY REVlEW, PAGE I
U>ENTITY OF PARTIES AND COUNSEL
DALTON JAMES BENNETT, JR. APPELLANT
c\o Texas Dept. of Criminal
Justice, InstitUtional
Division, Huntsville, Texas
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT
512 Main Street, Ste. 308 AT TRIAL AND ON APPEAL
Ft. Worth, Texas 76102
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Ft. Worth, Tx. 76196-0201
HONORABLE CHUCK MALLIN CHIEF, APPELLATE DIVISION,
401 W. Belknap St. TARRANT COUNTY DISTRICT
Ft. Worth, Tx'. 76196-0201 ATTORNEY'S OFFICE
HONORABLE SEA.N COLSTON ASSISTANT CRIMINAL DISTRICT
401 W. Belknap St. ATTORNEY, TARRANT COUNTY,
Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLESA LPARHAM ASSISTANT CRIMINAL DISTRICT
401 W. Belknap St. ATTORNEY,TARRANTCOUNTY
Ft. Worth, Tx. 76196-0201 TEXAS
HONORABLE SCOTT WISCH JUDGE, DISTRICT COURT
401 W. Bella)ap St. NUMBER372
Ft. Worth, Texas 76196 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING
P.O. Box 13046 ATTORNEY
Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 5
STATEMENT CONCERNING ORAL ARGUMENT 7
STATEMENT OF THE CASE 7
STATEMENT OF THE PROCEDURAL HISTORY 8
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 9
THE TRIAL COURT ERRED BY REFUSING TO GRANT
APPELLANT'S MOTION TO QUASH THE INDICTMENT,
WHICH VIOLATED APPELLANT'S CONSTITUTIONAL
RIGHT AGA:INST DOUBLE JEOPARDY
GROUND FOR REVIEW NUMBER TWO 12
THE TRIAL COURT'S DENIAL OF APPELLANT'S
MOTION TO QUASH ERRONEOUSLY ALLOWED THE
JURY TO FIND APPELLANT GUILTY OF CAPITAL
MURDER ON LESS THAN A UNANIMOUS VERDICT
GROUND FOR REVIEW NUMBER THREE 17
THE TRIAL COURT ERRED BY ALLOWING TESTIMONY
OF THE MEDICAL EXAMINER CONCERNING THE CAUSE
OF DEATH AND CLASSIFICATION AS A HOMICIDE, WHEN THE
MEDICAL EXAMINER DID NOT PERFORM THE AUTOPSY
AND HAD NO PERSONAL KNOWLEDGE OF SAME.
PETITION FOR DISCRETIONARY REVIEW, PAGE 3
PRAYER 23
CERTIFICATE OF SERVICE 24
CERTIFICATE OF COMPLIANCE 25
PETITION FOR DISCRETIONARY REVIEW, PAGE 4
INDEX OF AUTHORITIES
Cases Page
Boutang v. State, 402 S.W.3d 782 (Tex.App.-San Antonio 2013, 19
pet.rejd.)
Bullcoming v. New Mexico,_ u.s._, 131 S.Ct. 2705, 180 L.Ed.2d 610 20
(June 23, 2011)
Crawford v. Washington, 541 U.S. 36, 124 S.Ct 1354, 17
158 L.Ed.2d 177 (2004)
Davis vs. Washingt(Jn, 547 U.S. 813,26 S.Ct. 2266, 18
615 L.Ed2d 224 (2006)
Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911) 19
Ex Parte Denton, 399 S.W.3d 540, 545 (Tex.Crim.App. 2013) 10
Hammon v. Jndian(l, 547 U.S. 813, 26 S.Ct. 2266, 615 L.Ed2d 224 (2006) 18
Landrian v. State, 268 S.W.3d 532, 535-36 (Tex.Crim.App. 2008) 13
Martinez v. State, 225 S.W.3d 550, 554 (Tex.Crim.App. 2007) 13
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 18
174 L.Ed.2d 314 (2009)
Ngo v. State, 175 s W.3d 738, at 745 (Tex.Crim.App. 2005) 13
Pointer v. Texas, 30 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) 17
Saenz v. State, 131 S.W.3d 43 (Tex.App.- San Antonio 2003) 9
Saenz v. State, 166.S.W.3d 270, at 274 (Tex.Crim.App. 2005) 10
Schad v. Arizona, 501 U.S. 624, 631-32 (1991) 13
PETITION FOR D!SCRE!IONARY REVIEW, PAGE 5
U.S. vs. Ignasiak, 667 F.3d 1217, at 1230 (JP" Cir.2012) 20
Wood v. State, 299 S.W.3d 200,209-210 (Tex.App.-Austin, 2009, 19
pet ref' d)
Woodall v. State, 336 S.W.3d 634 (Tex.Crim.App. 2011) 17
Statutes
Texas Const. Art. V, Sec. 13; Tex. Code Crim. Proc. Art. 36.29(a) 12
United States Constitution, Fifth Amendment 10
United States Constitution, Sixth Amendment 17
United States Constitution, Fourteenth Amendment 17
PETITION FOR DISCRETIONARY REVIEW, PAGE 6
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from a felony conviction and sentence for the offense of
Capital Murder. Appellant was charged by indictment with the offense of Capital
Murder. CR, Pages. 9-10.
The jury found Appellant guilty as charged in the indictment. CR, Pages
277-279; RR-7, Pages 62-66. Specifically, the jury found that Appellant was
guilty of capital murder, as alleged in paragraph two of the indictment. (Sealed
clerk's items, court"s charge Page 11). The trial court assessed a punishment of
Life in the Institutional Division of the Texas Department of Criminal Justice.
CR, Pages 277-279; RR-7, Pages 62-66.
On direct appeal, the Court of Appeals for the Eighth Appellate District
affirmed Appellant's conviction. The opinion was designated for publication.
PETITION FOR DISCRE IONARY REVIEW, PAGE 7
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on April 5, 2013. Notice of Appeal was timely
filed. Appellant timely filed his brief in the Court of Appeals on December 23,
2013. The State timely filed its brief on March 10, 2014.
The case was submitted to the Eighth Court of Appeals, in El Paso, without
oral argument, on January 29, 2015. The Court of Appeals affirmed Appellant's
conviction on June 30, 2015. That opinion is not designated for publication.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 8
GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT ERRED BY REFUSING TO GRANT
APPELLANT'S MOTION TO QUASH THE INDICTMENT,
WHICH VIOLATED APPELLANT'S CONSTITUTIONAL
RIGHT AGAINST DOUBLE JEOPARDY
Appellant's Motion to Quash complained of the process of proceeding with a
three paragraph indictment, charging three separate ways, by alternating victims'
names, to commit capital murder with the same three victims. CR, Pages 212-215.
Appellant urged this matter numerous times, and the trial court overruled
Appellant's request each time it was made. RR-2, Pages 5-11; RR-4, Pages 6-14;
RR-4, Pages 67-70; and RR-7, Page 20. The jury found that Appellant had
committed capital murder as alleged in paragraph two of the indictment. (Sealed
clerk's items, courtls charge Page 11)
In Saenz v. Srate, 131 S.W.3d 43 (Tex.App.- San Antonio 2003), the
Appellant was charged with three violations of the same statute, capital murder.
The San Antonio Court of Appeals held that a multiple victim capital murder case
was only one allowable unit of prosecution, hence only one conviction was
allowable for double jeopardy purposes. Id, 131 S.W.3d, at 53. While the remedy
was to vacate two of the convictions in Saenz, supra, Appellant submits that the
trial should not have started the trial at all with the indictment Appellant was tried
PETITION FOR DISCRETIONARY REVIEW, PAGE 9
on. In Saenz, supra, the Appellant made no objection prior to trial. In the present
case, Appellant objected extensively to the process of trying him for several
allegations, even when the end result was to allow only one verdict.
On the State's Petition for Discretionary Review in Saenz, supra, this Court
affirmed the San Antonio Court of Appeals and held "the Double Jeopardy
Clause of the Fifth Amendment was violated when the State charged [emphasis
added] appellant with three separate counts of capital murder under Sections 19.03
(a)(7)(A) because the charges rely on the same three murders for each charge."
Saenz v. State, 166 S.W.3d 270, at 274 (Tex.Crim.App. 2005)
The Court ofAppeals held that since there was only one count, and
Appellant was only charged, but not yet convicted, Appellant's double jeopardy
clause had no application. Opinion, at pages 8-9. The double jeopardy clause
protects against (1) a second prosecution for the same offense after acquittal, (2) a
second prosecution for the same offense after conviction, and (3), multiple
punishments for the same offense. Ex Parte Denton, 399 S.W.3d 540, 545
(Tex.Crim.App. 2013). Appellant submits that the operative word in this holding
is charged, and therefore, the third prong above is implicated when a multiple
punishment proceeding is initiated. Appellant submits that multiple punishment
possibilities in a trial should be remedied before the trial, and a motion to quash is
PETITION FOR DISCRETIONARY REVIEW, PAGE 10
the proper remedy to preserve error in an indictment which alleges multiple
prosecutions, as in this case. Appellant should not be required to wait and see
what he is convicted of and how before having a remedy.
For these reasons, Appellant submits that his Motion to Quash should have
been granted, and to proceed on the indictment as filed, violated Appellant's
constitutional protections of double jeopardy, and this Court should reverse
Appellant's conviction and remand the case for a new trial.
PETITION FOR DISCRETIONARY REVIEW, PAGE 11
QROUND FOR REVIEW NUMBER TWO
THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION
TO QUASH ERRONEOUSLY ALLOWED THE JURY TO FIND
APPELLANT GUlLTY OF CAPITAL MURDER ON LESS
THAN A UNANIMOUS VERDICT
Appellant's Motion to Quash pointed out with particularity that if the trial
proceeded on the indictment as written, which alleged capital murder in three
different paragraphs with the same three persons interchanged, and if the jury was
instructed on and followed the law relating to paragraphs, the jury would be able
to convict Appellant on less than a unanimous verdict because unanimity would
not be required in each respective paragraph. CR, Pages 212-215.
Specifically, by charging in multiple paragraphs, the jury would not be
required to reach a unanimous verdict for each paragraph, rather, each individual
juror must only believe the State has met its burden of proof as to one ofthe
different paragraph$, while other jurors could be satisfied with the proof in a
separate paragraph. Hence, a non unanimous verdict.
Appellant made a motion for instructed verdict at the conclusion of the
State's evidence, which included the points relied on in his Motion to Quash,
which was denied. RR-7, Pages 5-6. A jury in a criminal case must reach a
unanimous verdict. Tex. Const. Art. V, Sec. 13; Tex. Code Crim. Proc. Art.
PETITION FOR DISCRETIONARY REVIEW, PAGE 12
36.29(a); Landrian v. State, 268 S.W.3d 532, 535-36 (Tex.Crim.App. 2008). The
jury must agree thatthe defendant committed "the same, single, specific criminal
act, " but need not uhanimously find that the defendant committed that crime by
one specific manner or means. Ngo v. State, 175 S.W.3d 738, at 745
(Tex.Crim.App. 2005); Schad v. Arizona, 501 U.S. 624, 631-32 (1991). The
phrase "manner or means" describes how the defendant committed the specific
criminal act, which is the actus reus. Ngo, 175 S.W.3d at 745-46; Schad, 501 U.S.
at 630 (noting that the act of "murder" was the actus reus of the offense, and
whether it was premeditated or committed during the course of robbery described
"how" the murder was committed). The State is pennitted to plead alternate
"manner and means'' of committing the same offense. Landrian, 268 S.W.3d at
535; Martinez v. State, 225 S.W.3d 550, 554 (Tex.Crim.App. 2007) (State is
required to set out each separate offense in a separate count, but may allege
different methods of committing the same offense in separate paragraphs within a
single count).
Essentially, the State may allege different theories in multiple paragraphs in
a count, which what was done in the present case. However, the paragraphs in the
indictment in this case did not differ by manner and means, rather, they differed
only by victims' names, which are the forbidden conduct, and must be proven
PETITION FOR DISCRETIONARY REVIEW, PAGE 13
beyond a reasonable doubt. Therefore, the indictment alleged and the trial court's
charge allowed proof on less than beyond a reasonable doubt of any specific
paragraph. Given the jury's verdict, paragraph two, and the corresponding
instruction in the trial court's charge that specifically directed the jury to not go to
paragraph two unless the jury had found Appellant not guilty of paragraph one of
the indictment (CR, Page 266), Appellant submits that the court's charge allowed
a conviction on less than a unanimous verdict of paragraph.
To have even considered paragraph two, the jury would have found
Appellant not guilty of paragraph one, which alleged that Appellant had killed
Sheryl Bennett and Jose Reyes. Paragraph two alleged that Appellant had killed
Sheryl Bennett and Tana Todd, and if the jury correctly followed the trial court's
instructions, Appellant would have been found not guilty of the murder of Sheryl
Bennett, and could not have been found guilty of her murder in the subsequent
paragraph.
Appellant renewed his Motion to Quash at the charge conference, and
specifically objected to the trial court's charge that allowed a not guilty on
paragraph one, and then a reconsideration of the same allegations in subsequent
paragraphs, not only allowing for double jeopardy problems, but also the
possibility of a conviction on less than a unanimous verdict. The trial court
PETITION FOR DISCRETIONARY REVIEW, PAGE 14
overruled this contention. RR-7, Pages 15-23. Additionally, the trial court
overruled Appellanfs request for the State to elect which paragraph it sought for a
conviction. RR-7, Page 23.
For all these reasons, Appellant submits that the trial court's charge was
erroneous, and Appellanfs Motion to Quash properly brought this perceived error
to the trial comi's attention, which it erroneously denied.
The Court of Appeals noted that the trial court's instructions directed the
jury to not consider, paragraph two unless it did not find the allegations of
paragraph one to be true beyond a reasonable doubt. Opinion, at pages 1 0-16.
That is exactly what happened. The problem is that the jury verdict did not
distinguish which pari of paragraph one was not proven beyond a reasonable
doubt. It could have just as easily been the murder of Jose Reyes as it could have
been Sheryl Bennett, and there is no indication. If it was Sheryl Bennett, then the
jury could not have found paragraph two true beyond a reasonable doubt.
Contrary to the Court of Appeals finding that a jury's determination of
insufficient evidence of paragraph one was just an alternate theory or prosecution
and the jury could then consider the second paragraph was a proper process,
Appellant submits that this process is exactly his complaint, i.e., allowing the jury
PETITION FOR DISCRE't'IONARY REVIEW, PAGE 15
to find sufficient evidence of capital murder without a unanimous verdict on who
was intentionally murdered.
Appellant requests that this Court reverse his conviction and enter an
acquittal, or alternatively, remand the case for a new trial.
PETITION FOR DISCRE't!ONARY REVIEW, PAGE 16
GROUND FOR REVIEW NUMBER THREE
THE TRIAL COURT ERRED BY ALLOWING TESTIMONY
OF THE MEDICAL EXAMINER CONCERNING THE CAUSE OF
DEATH AND CLASSIFICATION AS A HOMICIDE, WHEN THE
MEDICAL EXAMINER DID NOT PERFORM THE AUTOPSY AND
HAD NO PERSONAL KNOWLEDGE OF SAME.
The Confrontation Clause of the Sixth Amendment provides that" [i]n all
criminal prosecutions, the accused shall enjoy the right ... to be confronted with
the witnesses against him...." U.S. Constitution, Sixth Amendment. This
constitutional guarantee applies to both federal and state criminal prosecutions.
U.S. Constitution, Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 406,
85 S.Ct. 1065, 13 L Ed.2d 923 (1965). The essential purpose of the Confrontation
Clause is to prevent depositions or ex parte affidavits, such as were sometimes
admitted in civil cases, being used against the prisoner in lieu of a personal
examination and cross-examination of the witness in which the accused has an
opportunity, not only of testing the recollection and sifting the conscience ofthe
witness, but of compelling him to stand face to face with the jury in order that they
may look at him, and judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of belief. Woodall v. State, 336
S.W.3d 634 (Tex.Crim.App. 2011).
In Crawfordv. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
PETITION FOR DISCRETIONARY REVIEW, PAGE 17
(2004), the United States Supreme Court restored the Confrontation Clause's
procedural guarantee against the government's presentation of unsubstantiated and
ex parte testimony. Crawford, supra, held the Confrontation Clause bars the
admission of testimony statements of a witness who did not appear at trial, unless
that witness was unavailable to testify and the defendant had a prior opportunity
for cross examination. In Davis vs. Washington, 547 U.S. 813, 26 S.Ct. 2266, 615
L.Ed2d 224 (2006), the Supreme Court offered some guidance in the definition of
testimonial, holding that a 911 call made at the time of an assault was non
testimonial. The reasoning was that a 911 call was not initiated to establish or
prove past facts, but to describe current circumstances and allow police to render
assistance. In Hammon v. Indiana, 547 U.S. 813, 26 S.Ct. 2266, 615 L.Ed2d 224
(2006) decided in the same opinion with Davis, supra, the Supreme Court, held
that when there was no pending emergency in progress, the statements were more
testimonial in nature, and the constitution required that the witness actually testify.
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d
314 (2009), the Supreme Court held a certificate of drug analysis created for use in
a criminal prosecution was testimonial in nature and could not be admitted into
evidence absent the declarant who certified the result. /d. at 310-11, 129 S.Ct.
2527. Despite this holding, the majority also suggested that routine maintenance
PETITION FOR DISCRETIONARY REVIEW, PAGE 18
records might not be testimonial. See id. at 311 n. 1, 129 S.Ct. 2527
Additionally, documents prepared in the regular course of equipment
maintenance may well qualify as nontestimonial records." ). Consistent with its
observation in footnote one, the majority reasoned the certificate of analysis was
testimonial because it " prov[ed] one fact necessary for [Melendez-Diaz's]
conviction-that the substance he possessed was cocaine." Id. at 313, 129 S.Ct.
2527. Similarly, the majority distinguished the certificates of analysis from other
cases where records were admitted for a purpose other than showing the
defendant's guilt or innocence. /d. at 323 n. 8, 129 S.Ct. 2527 (citing Dowdell v.
United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753 (1911)); see also
Dowdell, 221 U.S. at 330, 31 S.Ct. 590 ("Documentary evidence to establish
collateral facts, admissible under the common law, may be admitted in evidence."
).
Appellant submits that testimony of the process and conclusions in an
autopsy are not maintenance records. See Boutang v. State, 402 S.W.3d 782
(Tex.App.-San Antonio 2013, pet.rej'd.). Although not always the case, an
autopsy is testimonial when the circumstances surrounding death warranted the
police in the suspicion that the death was a homicide. Wood v. State, 299 S.W.3d
200,209-210 (Tex.App.-Austin, 2009, pet ref' d).
PETITION FOR DISCRETIONARY REVIEW, PAGE 19
Appellant submits that to simply allow an expert who did not examine the
evidence or have personal knowledge of the evidence be allowed to make the
conclusions to simply read the report and then state his opinions eviscerates
Crawford and its progeny.
In U.S. vs. Ignasiak, 667 F.3d 1217, at1230 (11th Cir.2012), the Eleventh
Circuit vacated the decision of the district court that allowed a surrogate to testify
about the forensic evidence, as opposed to the actual scientist who performed the
testing. The Ignasiak court held that the scientific nature of forensic reports does
not justify subjecting them to lesser scrutiny than other testimonial evidence. In
Bullcoming v. New Mexico,_ U.S._, 131 S.Ct. 2705,180 L.Ed.2d 610 (June
23, 2011), the Court made clear that the Sixth Amendment requires that, when
introducing testimonial forensic evidence, the prosecution must present testimony
by a scientist who was actually involved in preparing that forensic evidence. /d. at
2710,2713. In so doing, the Supreme Court specifically rejected the use of so-
called" surrogate testimony," which in Bullcoming was that of a colleague from
the same lab that prepared the disputed forensic report, but who had not
specifically worked on the reports in question. /d. at 2710, 2712-13. Even though
the colleague was able to testify as to the efficacy and reliability of the laboratory
equipment, and also whether normal protocol was followed, the Court explained
PETITION FOR DISCRETIONARY REVIEW, PAGE 20
that the " comparative reliability of an analyst's testimonial report drawn from
machine-produced data does not overcome the Sixth Amendment bar ... [because]
the obvious reliability of a testimonial statement does not dispense with the
Confrontation Clause." /d. at 2714. Instead, only testimony by the actual scientist
who prepared the forensic report could provide insight into "the particular test and
testing process ... employed," and also " expose any lapses or lies on the certifying
analyst's part." Id.
In the present case, the trial court erred by allowing the testimony of Dr.
White concerning the autopsy of Jose Reyes. Appellant submits that Dr. White
knew nothing about the autopsy of Jose Reyes, which was shown by White's lame
attempt tore characterize his observations to circumvent the rule after he testified
he had no personal knowledge of Reyes' autopsy. RR-6, Pages 181-190.
Although the jury ultimately found that Appellant guilty of a paragraph that did
not allege Appellant caused the death of Jose Reyes, the damage of the testimony
was done. The trial court should not have allowed the tainted testimony.
The Court of Appeals held that since the jury did not find that Appellant had
killed Jose Reyes, there was no error of a lack of confrontation in the jury's
verdict. Opinion, at page 16.
Appellant submits that the finding of insufficiency in paragraph one, which
PETITION FOR DISCRETIONARY REVIEW, PAGE 21
gives rise to the verdict in paragraph two supports Appellant's contention that a
finding of acquittal in paragraph one, per the trial court's instructions, would bar
consideration of the second and third paragraphs. The trial court's instructions
allowance of testimony about the autopsy of Jose Reyes based on the lack of
confrontation gave rise to the verdict of guilty in paragraph two. Thus,
Appellant's confrontation objection, which was overruled, created the non
unanimous verdict of paragraph two.
If this Court does not sustain Appellant's contention and enter an order of
acquittal in paragraph two, Appellant submits that this point of error should be
sustained and an order for a new trial be ordered pursuant to point of error number
three.
For these rea$ons, Appellant submits that this Court reverse his conviction
and remand the case for a new trial.
PETITION FOR DISCRETIONARY REVIEW, PAGE 22
PRAYER FOR RELIEF
Appellant Prays that this Honorable Court reverse his conviction and enter a
judgment of acquittal, or alternatively, remand the case for a new trial.
RESPECTFULLY SUBMITTED,
/S/ WILLIAM H. "BILL" RAY
WILLIAM H. "BILL" RAY
TEXAS BAR CARD NO. 16608700
ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. "BILL" RAY, P.C.
512 MAIN STREET, STE. 308
FORT WORTH, TEXAS 76102
(81 7) 698-9090
(81 7) 698-9092, FAX
PETITION FOR DISCREtiONARY REVIEW, PAGE 23
CERTIFICATE OF SERVICE
I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the office of Sharen Wilson,
Criminal District Attorney, Criminal District Attorney of Tanant County, Texas,
401 W. Belknap St. Ft. Worth, Tx. 76196-0201 on the date ofthis document's
filing.
a
I certify that true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Conections, on the date of this document's filing.
I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State's Prosecuting Attorney,
at P.O. Box 13046, on the date of this document's filing.
/S/ WILLIAM H. "BILL" RAY
WILLIAM H. "BILL" RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 24
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that this Petition fmDiscretionary Review filed in this case, has 3867 words
contained therein. This count was obtained via the WordPerfect computer
program.
/S/ WILLIAM H. "BILL" RAY
WILLIAM H. "BILL" RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 25
COURT OF APPEALS EIGHTH
DISTRICT OF TEXAS EL
PASO, TEXAS
DALTON JAMES BENNETT, JR. AIKJA §
DALTON JAMES BENNETT, No. 08-13-00138-CR
§
Appellant, Appeal from the
§
v. 372nd District Court
§
THE STATE OF TEXAS, ofTarrant County, Texas
§
Appellee. (TC# 1244131D)
JUDGMENT
The Court has considered this cause on the record and concludes the judgment of
conviction should be modified to reflect that the trial court assessed the punishment in
Appellant's case. We therefore affirm the judgment of the trial court as modified. This decision
shall be certified below for observance.
IT IS SO ORDERED THIS 30TH DAY OF JUNE, 2015.
STEVEN L. HUGHES, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
COURT OF APPEALS EIGHTH
DISTRICT OF TEXAS EL
PASO, TEXAS
DALTON JAMES BENNETT, JR. A/KIA §
DALTON JAMES BENNETT, No. 08-13-00138-CR
§
Appellant, Appeal from the
§
v. 372nd District Court
§
THE STATE OF TEXAS, ofTarrant County, Texas
§
Appellee. (TC# 1244131D)
OPINION
Appellant Dalton James Bennett was found guilty by a jury of one count of capital murder
of his wife and his sister-in-law, and received an automatic life sentence. On appeal, Appellant
contends the trial court violated his right to be free from double jeopardy, his right to a unanimous
verdict, and his Sixth Amendment right to confront witnesses. We conclude Appellant's rights
were not violated and affirm the trial court's judgment. 1
FACTUAL BACKGROUND
Appellant separated from his wife, Sheryl Bennett, approximately six months before the
killings that formed the basis of his capital murder conviction. Appellant and Sheryl had a
1
This case was transferred from our sister court in Fort Worth, and we decide it in accordance with the precedent of
that Court to the extent required by TEX. R. APP. P. 41.3.
somewhat rocky relationship. While separated, Sheryl became involved with Jose Reyes, and the
two began living together in Sheryl's apartment on a part-time basis. According to friends,
Appellant appeared to be upset about his wife's new relationship and believed she was "cheating"
on him. Approximately two weeks before the killings, Appellant met with a mutual friend,
advised her that he was upset with Sheryl because of her new relationship, and stated: "You don't
know how bad I want to give her an extra hole to breathe out of."
Around 10:30 p.m. the night before the killings, Sheryl and Jose walked from her
apartment to a nearby bar, along with Sheryl's brother, Johnny Todd, and Johnny's wife, Tana
Todd, who lived in the apartment adjacent to Sheryl. Sheryl's brother, James Todd, remained at
the apartment to babysit Sheryrs five children, as well as Johnny and Tana's three children.
Appellant arrived at the same bar to meet mutual friends. When Appellant learned that
Sheryl was at the bar with Jose, he advised his friends he intended to leave because of their
presence. After Appellant left the bar, he exchanged several negative text messages with both
Sheryl and his sister-in-law Tana in the hours leading up to the killings.
Sheryl, Tana, Jose, and Johnny left the bar together, arriving back at Sheryl's apartment at
approximately 12:30 a.m. The four ofthem went into Sheryl's bedroom located in the back ofthe
apartment, and began drinking "Jager shots," while at least three of their children were in the living
room playing video games.
Shortly thereafter, Appellant walked into the apartment through an unlocked door and
entered Sheryl's bedroom. According to Johnny Todd, who survived the shootings, when
Appellant walked in, he told Sheryl, "Here's your divorce," and proceeded to shoot Sheryl in the
arm. Immediately thereafter, Appellant shot Johnny Todd in the neck, causing him to collapse to
2
the ground. Johnny Todd recalled that Appellant also shot his wife, Tana, at the same time,
causing her to fall to the ground as well. Johnny Todd testified that he recalled hearing three or
four additional shots after he and Tana were shot.
Although unable to move for several minutes, Johnny was eventually able to check on the
other victims. He determined they were all dead and then went next door to his apartment to call
911. During that call, Johnny identified Appellant as the shooter to the 911 operator.
Sheryl's son, Jason Todd, who was ten years old at the time of the shootings, testified that
he was in the living room of Sheryl's apartment playing a video game when he heard someone
enter the apartment and walk into his mother's bedroom. Jason thereafter heard at least two
gunshots and then sav.* Appellant leave his mother's bedroom with a gun in his hand. After
entering the bedroom and seeing the three bodies on the floor, Jason ran to the apartment next door
and told his uncle. James Todd, to call 911. At that same time, Jason observed his other uncle,
Johnny Todd, bleeding from a hole in his neck and trying to call 911 as well.
When Arlington police officers arrived at the scene, they determined that Sheryl, Tana, and
Jose had been shot, and showed no signs of life. Upon learning from witnesses that Appellant
was a suspect in the killings, police officers were dispatched to Appellant's horne, where they
found Appellant in the garage bleeding from apparently self-inflicted wounds, unresponsive to
their verbal commands. It appeared to the officers that Appellant had cut himself on the arms and
neck with a box cutter that was found nearby on the garage floor. The officers also found a
possible suicide note on a desk in Appellant's bedroom, in which Appellant apologized to his
mother and son, saying he could not ''handle the pain anymore" and that he could not "let her get
away with this.''
3
The officers found a Llama .45 caliber, semi-automatic handgun and holster under
Appellant's bed. as well as a gun box with "two empty magazines" in a nearby closet. The police
later tested bullets and .45 auto-caliber shell casings found at the crime scene, and concluded they
were all fired from the .45 Llama gun found at Appellant's residence.
Immediately after the shootings, Appellant was transported to the hospital for treatment for
his wounds, but was reLeased shortly thereafter and taken to the jail where detectives interviewed
him. After waiving his rights and voluntarily agreeing to speak to the detectives, Appellant made
a full recorded confession, admitting that he had shot all four victims in Sheryl's apartment.
During this interview, Appellant advised detectives that he would have shot himself after the
killings, but he had no bullets left.
At trial, Dr. Lloyd White, a physician contracted with the Tarrant County Medical
Examiner's Office, testified that he personally conducted an autopsy on Tana Todd's body, and
concluded that she had died from a gunshot wound that went through her head and brain, exiting
through the other side. Dr. White further concluded that the shot was fired just a few inches from
Tana's head, causing her instantaneous death, and that Tana's death was a homicide.
Dr. White testified that he also personally performed an autopsy on Sheryl's body and
concluded that Sheryl suffered three gunshot wounds to her shoulder, eye, and collarbone area, all
of which went through her body. According to Dr. White, shots were fired a few inches away
from Sheryl's body, but the only fatal wound was the one in her collarbone area. Dr. White
concluded that Sheryl'$ death was a homicide.
Dr. White, however, did not perform the autopsy on Jose Reyes' body, and the doctor who
performed the autopsy, Dr. Gary Sisler, had retired prior to trial and was not called as a witness.
4
Over Appellant's continuing objection, Dr. White was allowed to testify that he had reviewed Dr.
Sisler's autopsy report and medical file, and on that basis had formed an opinion that the cause of
Jose's death was a homicide, resulting from a "perforating gunshot wound of the head and brain.''
The jury found Appellant guilty of capital murder, expressly finding that Appellant had
intentionally killed Sh(tryl Bennett and Tana Todd in a single criminal transaction. The trial
court imposed an automatic life sentence as required by statute.
DISCUSSION
The Trial Court's Denial of the Motion to Quash the Indictment
In his first two issues, Appellant contends that the trial court erred when it denied his
motion to quash the indictment, contending that the indictment violated both his right to be free
from double jeopardy a,nd his right to a unanimous verdict.
Background
The indictment charged Appellant with a single count of capital murder, based on the
theory that he had intentionally killed multiple victims in a single transaction in violation of
TEX.PENAL CODE ANN.§ 19.03(a)(7)(A) (West Supp. 2014).2 However, the indictment contained
three separate paragraphs, each setting forth an alternative theory of prosecution. The first
paragraph alleged Appellant had intentionally caused the death of Sheryl Bennett and Jose Reyes
in the same transaction; the second paragraph alleged Appellant had intentionally caused the death
of Sheryl Bennett and Tana Todd in the same transaction; and the third paragraph alleged
Appellant had intentionally caused the death ofTana Todd and Jose Reyes in the same transaction.
Appellant filed a pretrial motion to quash the indictment, contending the indictment in
2
TEX.PENAL CODE ANN. § 19.03(a) provides that an individual commits the offense of capital murder if "(7) the
person murders more than one person: (A) during the same criminal transaction ...."
5
effect accused him of committing three separate capital murder offenses involving the same three
victims, and that he therefore faced the possibility of being convicted of three separate capital
murder charges in violation of his double jeopardy rights. Appellant also argued that the
indictment improperly raised the possibility that a jury could reach a non-unanimous verdict, as
some jurors could base a guilty verdict on a finding that Appellant had killed Sheryl Bennett and
Jose Reyes in a single transaction; while others could base their verdict on a finding that he had
killed Sheryl Bennett and Tana Todd in a single transaction; while yet others could base their
verdict on a finding that he had killed Tana Todd and Jose Reyes in a single transaction.
At a pretrial hearing, another judge sitting in place of the trial court denied the motion to
quash. Appellant thereafter renewed his motion at various times during the trial, but the trial
court denied his motion on each occasion.
Standard of Review
The standard of review for assessing a trial court's ruling on a motion to quash turns on
which judicial actor is in the best position to determine the issue in controversy. See Guzman v.
State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Questions oflaw- such as the sufficiency of an
indictment- are reviewed de novo because neither the trial court nor the reviewing court occupies
an appreciably better position than the other to decide the issue. See State v. Moff, 154 S.W.3d
599,601 (Tex.Crim.App. 2004); Guzman, 955 S.W.2d at 89; Ahmadv. State, 295 S.W.3d 731,739
(Tex.App. -Fort Worth 2009, pet. refd) (op. on reh'g). Appellant is challenging the legal
sufficiency of the indictment, and we therefore review Appellant's challenges to the indictment de
novo.
Appellant's Double Jeopardy Rights were not Violated
6
In Issue One, Appellant contends the trial court's failure to quash the indictment violated
his double jeopardy rights, as it potentially subjected Appellant to three separate convictions for
capital murder when only one such conviction was permissible. In support of his argument,
Appellant relies almost exclusively on Saenz v. State. 166 S.W.3d 270 (Tex.Crim.App. 2005). In
Saenz, the defendant was charged with capital murder in a three-count indictment involving three
murders alleged to have occurred in a single criminal transaction. Each count alleged the murder
of a different victim. and each count alleged the murder of two other victims in the same criminal
transaction as aggravating circumstances. The jury convicted the defendant of all three counts of
capital murder, but the San Antonio Court of Appeals concluded that double jeopardy prohibited
the defendant from being convicted of multiple counts of capital murder involving the same three
victims. Id. at 271. The court of appeals therefore vacated two of the defendant's convictions
and allowed only one to stand.
On the State's petition for discretionary review, the Texas Court of Criminal Appeals
agreed with the appellate court, holding that the capital murder statute, TEx.PENAL CoDE ANN. §
19.03(a)(7)(A), allowed only a single conviction under these circumstances. The Court explained
that the Penal Code provides that a defendant may commit capital murder in several different
ways, including situations in which the defendant commits a predicate murder, with the
commission of one or more additional murders in a single transaction as an aggravating
circumstance. The Court pointed out that when the State is prosecuting a defendant for capital
murder on this basis, its prosecution necessarily rests on the theory that the defendant killed "more
than one person" in a single transaction. making this the "allowable unit of prosecution[.]" Saenz.
166 S.W.3d at 273-74.
7
The Court explained that in a non-capital murder case, the murder itself is the "allowable
unit of prosecution." ancfi a defendant may therefore be convicted of more than one count of murder
when charged individually with the deaths of multiple victims. However. in capital murder cases
in which the multiple murder itself is considered to be the "allowable unit of prosecution." the
defendant may not be charged or convicted of three separate counts of capital murder utilizing the
same three victims for each count, and may instead only be charged and convicted of a single count
of capital murder. The Court therefore upheld the court of appeals' decision to vacate two of the
defendant's convictionand to allow only one conviction to stand. !d. at 274.
Appellant acknowledges that unlike the defendant in Saenz, he was not convicted of
multiple counts of capital murder; however, he believes that simply being charged in an indictment
that allowed for the possibility of multiple convictions violated his right to be free from double
jeopardy. Appellant points out that in its holding in Saenz, the Court of Criminal Appeals
expressly stated that the defendant's double jeopardy rights had been violated when he was
''charged'' with three separate counts of capital murder. !d. Appellant believes this is the
"operative" language in the opinion, and that the Court intended to hold that the double jeopardy
violation occurred at the time the defendant was charged with multiple counts of capital murder,
rather than at the time he was convicted. Appellant reasons that his double jeopardy rights were
also violated at the time that he was charged with what he describes as a "facially
unconstitutional[]" indictment, improperly accusing him of committing three separate acts of
capital murder. Appellant asserts that this allegedly fundamental error in the indictment
somehow "tainted" the :entire proceedings, and requires us to reverse the trial court's judgment and
order a new trial. Appellant's argument fails for several reasons.
8
First, unlike the defendant in Saenz, Appellant was not charged in a three-count indictment,
and was instead charged with only a single count of capital murder. As explained in more detail
below, the three paragraphs contained in the indictment alleged the alternative means by which the
one count of capital murder was committed. Further, the trial court expressly instructed the jury
that it could only convict Appellant of one count of capital murder as set forth in the indictment,
and the jury form given to the jury allowed for only one conviction of capital murder. In contrast
to Saenz in which the defendant was charged and convicted of three separate offenses, there was no
possibility that Appellant could have been convicted of more than one count of capital murder, and
in fact he was not.
Second, we note that even though the Court in Saenz stated that the defendant's double
jeopardy rights had been violated when he was ''charged" with three separate counts of capital
murder, the Court nevertheless made it clear that the double jeopardy violation did not actually
occur until the defendapt was convicted of three separate charges. As the Court in Saenz noted,
the Fifth Amendment's "Double Jeopardy Clause protects against multiple punishments for the
same offense." Saenz. 166 S.W.3d at 272 (emphasis added). It is only violated when a
defendant "is convicted of more offenses than the legislature intended." Id. (emphasis added)
(quoting Ex parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999)); see also Ex parte Milner,
394 S.W.3d 502, 506 {Tex.Crim.App. 2013) ("The Double Jeopardy Clause protects criminal
defendants from ... multiple punishments for the same offense.").
Further, we find it significant that the Court in Saenz did not find it necessary to remand the
defendant's case for a new trial, despite its conclusion that the defendant had been improperly
charged and convicted of three separate counts of capital murder. Instead, the Court believed that
9
any such error could be remedied by vacating two of the capital murder convictions, and allowing
only one conviction to stand. Saenz, 166 S.W.3d at 274. Therefore, even ifthe Court in Saenz
believed that a constitutional violation had existed at the charging stage of the proceedings, it
clearly believed that any such violation did not completely taint the proceedings, and that the
violation could be remedied by ensuring that only one conviction stood in the defendant's case.
In the present case, Appellant suffered only one conviction for capital murder, and we
therefore reject Appellant's argument that his double jeopardy rights were violated.
The Jury Returned a Unanimous Verdict
In a somewhat related argument, Appellant contends in his second issue that the trial
court's failure to quash the indictment violated his right to a unanimous verdict. Appellant
correctly points out that a jury in a criminal case must reach a unanimous verdict. See TEX.CODE
CRIM.PROC.ANN. art. 36.29(a) (West Supp. 2014) (not less than twelve jurors can render and
return a verdict in a felony case). Most recently, the Court of Criminal Appeals addressed this
issue in Saenz v. State. 451 S.W.3d 388 (Tex.Crim.App. 2014), when it stated: ''Texas law requires
a unanimous jury verdict in all criminal cases. More specifically, 'the jury must be unanimous in
finding every constituent element of the charged offense in all criminal cases."' !d. at 390 (quoting
Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014)).
Appellant argues that the indictment improperly raised the possibility that a jury could
have reached a non-unanimous verdict, as some jurors could have based a guilty verdict on a
finding that he had killed Sheryl Bennett and Jose Reyes in a single transaction: while others could
have based their verdict on a finding that he had killed Sheryl Bennett and Tana Todd in a single
transaction; while yet others could have based their verdict on a finding that he had killed Tana
10
Todd and Jose Reyes in a single transaction. Appellant contends that because of the possibility of
a non-unanimous verdict, the State should not have been permitted to proceed on the alternative
theories set forth in the indictment, and should have instead been required to elect only one theory
of prosecution to submit to the jury.
We initially note that the State is permitted to charge a defendant with a single offense, and
to use multiple paragraphs to assert alternative means of committing the crime alleged. In
Martinez v. State, 225 S.W.3d 550, 554 (Tex.Crim.App. 2007), the Court of Criminal Appeals
explained that when the State elects to charge multiple offenses in a single indictment, it is
required by statute to set out each separate offense in a separate "count." However, the State may
include separate "paragraphs" within a single count, alleging different methods of committing the
same offense, in accordance with TEX.CODE CRIM.PROC.ANN. art. 21.24(b).' Id.: see also
Landrian v. State. 268 S.W.3d 532, 535 (Tex.Crim.App. 2008) (State is permitted to plead
alternative '·manner and means" of committing the same offense).
In capital murder cases in particular, the State is permitted to charge a defendant with
committing capital murder by alternative means in a single-count indictment. See Gamboa v.
State. 296 S.W.3d 574, 582-84 (Tex.Crim.App. 2009) (State properly charged defendant with one
count of capital murder in a two-paragraph indictment, alleging that the defendant caused the death
of the same victim while robbing him, or alternatively, while murdering another victim during the
same criminal transaction); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991)
(alternative pleading of differing methods of committing capital murder may be charged in one
indictment). In fact, in light ofthe Court of Criminal Appeals' opinion in the 2005 Saenz case, it
3 TEX.CODE CRIM.PROC.ANN. art. 21.24(b) (West 2009) provides that: ''A count may contain as many separate
paragraphs charging the same offense as necessary, but no paragraph may charge more than one offense."
11
appears that the State had little choice but to allege capital murder in a one-count indictment based
on its theory that Appellant had intentionally killed three victims in a single criminal transaction.
Saenz, 166 S.W.3d at 273-74 (State must avoid charging a defendant with multiple counts of
capital murder involving the same victims to ensure that the defendant's double jeopardy rights are
not violated by the pos ibility of multiple convictions). Ifthe State had charged Appellant with
separate capital murder counts, naming the same victims in each count, it would have subjected
Appellant to a possible double jeopardy violation- the very thing that concerned Appellant in his
first point of error. We therefore conclude that the State properly charged Appellant in a
single-count indictment, utilizing multiple paragraphs for each alternative theory in support of its
prosecution.
Further, we note that when a defendant is charged with capital murder involving multiple
victims killed in a single criminal transaction, a defendant's right to a unanimous verdict is only
violated ifthe record reflects a possibility that the jury did not agree on which victims were killed
in the transaction. The 2014 Saenz case is illustrative of this point. In that case, the defendant
had been indicted, amoJilg other things, on one count of capital murder, based on the allegation that
she had intentionally killed five different victims pursuant to the same scheme or course of conduct
4
in violation of TEX.PENAL CODE ANN. § 19.03(a)(7)(B). Saenz, 451 S.W.3d 388. In the
indictment, the State had simply listed the names of each individual victim, and the jury charge
instructed the jurors to determine if the defendant had caused the death of "more than one" of the
five named individuals during the same scheme or course of conduct.
The Court held that the jury charge was defective, as it did not specify the "killing of any
4
TEX.PENAL CODE ANN. § 19.03(a) provides that a person commits capital murder if "(7) the person murders more
than one person: . . . (B) during different criminal transactions but the murders are committed pursuant to the same
scheme or course of conduct[.]"
12
one victim as the predicate murder, and the jury was not required to specifY which two or more of
the five alleged victims that they agreed the appellant had murdered." Jd. at 391. In particular,
the Court noted that the language used in the jury charge "made it possible for the jurors to convict
without agreeing that any one particular person was murdered by the appellant," and there was no
requirement that the jurors had to agree on which of the various victims were killed; thus, as the
Court pointed out, some jurors could have agreed that the defendant "killed victims A, B, and C,
while the other six agreed she killed victims D and E." The Court therefore concluded that
defendant's right to a unanimous verdict had been violated. Jd. at 391-92; see also Ngo v. State,
175 S.W.3d 738, 749 (Tex.Crim.App. 2005) (trial court erred in failing to instruct jury that it must
be unanimous in deciding which one of the three disjunctively submitted offenses it found
appellant committed).
In contrast, in the present case the indictment alleged three separate, alternative paragraphs
naming two of the victims in each paragraph. The jury charge made it abundantly clear that the
jury was required to consider each of the three paragraphs set forth in the indictment separately,
and to unanimously select only one of those paragraphs as a basis for its verdict. 5 Read in
5
In particular, the jury was instructed to initially consider the first paragraph of the indictment, and to determine
whether it found beyond a reasonable doubt that Appellant had intentionally caused the deaths of both Sheryl Bennett
and Jose Reyes during the same criminal transaction. The charge then instructed the jury that if it found the
allegations set forth in the first paragraph to be true beyond a reasonable doubt, it was required to fmd Appellant guilty
of the offense of capital murder. At that point, the jury's task would be complete. However, the charge went on to
instruct the jury that if it did not find the allegations in paragraph one to be true beyond a reasonable doubt, then it
would be required to consider the allegations set forth in the second paragraph, and determine whether it found beyond a
reasonable doubt that Appellant had intentionally caused the deaths of both Sheryl Bennett and Tana Todd in the
same criminal transaction. If the jury answered in the affirmative, it was instructed to find Appellant guilty of capital
murder, and once again, the jury's task would be complete. If, however, the jury did not fmd the allegations in
paragraph two to be true beyond a reasonable doubt, it was then instructed to consider the third paragraph in the
indictment, and determine whether Appellant had intentionally caused the deaths ofboth Tana Todd and Jose Reyes in
the same criminal transaction. Once again, if the jury answered in the affirmative, it was instructed to convict
Appellant of capital murder, and if not, it was to instructed to consider the Jesser included offenses of murder with
regard to each of the three victims.
13
conjunction with the trial court's instruction to the jury that its verdict had to be unanimous, the
jury was clearly instructed that it was required to unanimously agree on one theory of prosecution,
and to expressly decide which victims it believed were intentionally killed by Appellant, before it
could find Appellant guilty of capital murder.
Further, the Verdict Form also made it clear to the jury that it was required to select and
agree upon only one of the State's three theories of prosecution in reaching its verdict. In
particular, the Verdict Form gave the jury three alternatives for finding Appellant guilty of capital
murder:
We, the Jury, find the Defendant, Dalton James Bennett, Jr., guilty of the offense of
capital murder, as charged in the first paragraph of the indictment.
OR
We, the Jury, find the Defendant, Dalton James Bennett, Jr., guilty of the offense of
capital murder, as charged in the second paragraph ofthe indictment.
OR
We, the Jury, find the Defendant, Dalton James Bennett, Jr., guilty of the offense of
capital murder, as charged in the third paragraph of the indictment.
The presiding juror signed his name under the second option for finding Appellant guilty of capital
murder as charged in the second paragraph of the indictment (i.e., the killings of Sheryl Bennett
and Tana Todd). Further, after the jury's verdict was read in court, specifically stating that the
jury had found Appellant guilty of capital murder as alleged in the second paragraph of the
indictment, the jury was polled, and all of the jurors affirmed that this was their unanimous
decision. As such, it is clear that the jury did in fact reach a unanimous verdict finding that
Appellant was guilty of capital murder in Sheryl Bennett's death, based on the aggravating
circumstance that Appellant also intentionally killed Tana Todd in this same criminal transaction.
14
The Jury Charge did not Allmr the Jury to Acquit Appellant and then Reconsider its Decision
Also in his second issue, Appellant makes one last argument criticizing the jury charge,
asserting that the jury charge allowed the jury to "'acquit" Appellant of murdering Sheryl Bennett
when it found there was reasonable doubt as to the allegations in the first paragraph in the
indictment (i.e., that Appellant had intentionally killed Sheryl Bennett and Jose Reyes in the same
transaction), and then improperly allowed the jury to '·reconsider" its "'acquittal" in Sheryl
Bennett's death, when the jury was asked to consider the allegations set forth in the second
paragraph ofthe indictment (i.e., that Appellant had intentionally killed Sheryl Bennett and Tana
Todd in the same transaction). Appellant asserts that the jury charge allowed not only for "double
jeopardy problems. but also the possibility of a conviction on less than a unanimous verdict." We
disagree.
As explained above, each of the three paragraphs in the indictment properly alleged an
alternative theory of prosecution for capital murder, and each paragraph in effect charged a
separate "allowable unit of prosecution" for capital murder, i.e., the killing of more than one
individual in a single criminal transaction. See Saenz. 451 S.W.3d 388: Ex parte Milner, 394
S.W.3d at 507. Thus. with respect to the first paragraph in the indictment, the jury was not asked
to determine if Appellant had intentionally killed Sheryl Bennett, without any aggravating
circumstances, as it would have done in a simple murder case; instead, the jury was asked if
Appellant had intentionally killed both Sheryl Bennett and Jose Reyes in a single criminal
transaction, in support of the State's first theory of prosecution in its capital murder case.
When the jury declined to enter a verdict based on that particular theory of prosecution, it
did not acquit Appellant of Sheryl Bennett's murder; instead, it simply determined that there was
15
insufficient evidence to find that Appellant had intentionally killed both Sheryl and Jose in a single
criminal transaction, and therefore insufficient evidence to support a capital murder conviction on
the State's first theory of prosecution. The jury was then instructed to proceed to the State's next
theory of prosecution, as set forth in paragraph two of the indictment, and determine whether it
believed beyond a reasonable doubt that Appellant had intentionally caused the deaths of both
Sheryl Bennett and Tana Todd in a single criminal transaction.
As the State's alternative theories of prosecution related solely to the capital murder charge
that Appellant had murdered multiple victims in a single transaction, the jury's rejection of one of
those theories did not amount to an implied or express acquittal of Appellant on the lesser included
charge of simple murder as to each individual victim. We therefore find no defect in the jury's
charge, and we reject Appellant's argument on this point.
Appellant's Right to Confront Witnesses
In his third issue, Appellant contends the trial court violated his Sixth Amendment right to
confront witnesses by allowing the county's medical examiner, Dr. Lloyd White, to provide his
opinion on the cause of Jose Reyes' death based on his review of an autopsy report that was
prepared by a now-retired medical examiner, Dr. Gary Sisler, who was not present in court to
testify. The jury, however, did not find that Appellant had intentionally killed Jose Reyes, and
instead based its verdict solely on the deaths of Sheryl Bennett and Tana Todd. Further, we have
concluded there was no error in the jury's verdict in this regard. Consequently, Appellant's third
issue is irrelevant and moot. We overrule all of Appellant's issues.
Reformation of Error in the Judgment
In its brief, the State points out that the trial court's written judgment mistakenly recorded
16
that the jury assessed the punishment in Appellant's case. The reporter's record. however. reveals
that the trial court actually imposed the life sentence on Appellant, recognizing that capital murder
carries an automatic life sentence in cases in which the death penalty has been waived. See
TEX.PENAL CODE ANN. § 12.31(a)(2) (West 2011).
The Texas Court of Criminal Appeals has held that when there is a variation between the
oral pronouncement of sentence and the written memorialization of the sentence, the oral
pronouncement controls. Coffey v. State. 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). In such
cases, an appellate court is authorized to reform or modify the judgment to conform to the record
of the proceedings and to render an appropriate judgment, in accordance with its authority under
TEx.R.APP.P. 43.2. See French v. State. 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (appellate
court has authority to reform a judgment to include an affirmative finding to make the record speak
the truth when the matter has been called to its attention by any source); Bigley v. State. 865
S.W.2d 26, 27-28 (Tex.Crim.App. 1993) (appellate court has the power to modify incorrect
judgments when the necessary data and information are available to do so).
We therefore believe it is appropriate to modify the trial court's judgment to reflect that the
trial court, and not the jury, assessed the sentence in this case, in accordance with the trial court's
oral pronouncement at trial.
CONCLUSION
The trial court's judgment is affirmed as modified to reflect that the trial court assessed the
punishment in Appellant's case.
STEVEN L. HUGHES, Justice
June 30, 2015
17