Raby v. State

OPINION

KELLER, Judge,

delivered the opinion of the Court

in which McCORMICK, Presiding Judge, and MANSFIELD, HOLLAND and WOMACK, Judges, joined.

Appellant, Charles Douglas Raby, Jr., was convicted of capital murder in June of 1994.1 Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death.2 Article 37.071 § 2(g). Direct appeal is automatic. Article 37.071 § 2(h). We will affirm.

Edna Mae Franklin, the 72-year-old complainant in this case, lived with her two grandsons, who were appellant’s friends. Although Franklin had barred appellant from her home, her grandsons often snuck him in through a window and allowed him to spend the night. On the night of the offense, the two grandsons left their grandmother at home and went out. Upon their return, one of them discovered Franklin dead on the living room floor. She had been severely beaten and repeatedly stabbed, and her throat was cut. Her attacker had undressed her below the waist. The contents of her purse had been emptied onto her bedroom floor. Police concluded the attacker’s point of entry was the same window through which the grandsons had previously ushered appellant. After further investigation, police arrested appellant for the offense, and he confessed to the killing.

At trial, appellant pleaded not guilty to the capital murder of Franklin. At the close of the guiltyinnocenee phase evidence, the jury returned a guilty verdict. At the punishment phase, the State introduced evidence of a variety of previous offenses and bad acts. Witnesses testified to a series of assaults committed by appellant, with the victims including appellant’s girlfriend, his stepfather, a ten-year-old boy, a two-year-old girl, a friend’s mother, and others. While incarcerated, appellant reportedly attacked jailers and sheriffs deputies, fought with other inmates, and was found in possession of weap*3ons on more than one occasion. Witnesses also testified about appellant’s involvement in several convenience store robberies. Appellant offered testimony at punishment relating to his troubled upbringing, including his mother’s mental problems, his commitment to foster care and institutions, and episodes of physical abuse. Other witnesses testified that appellant had a peaceful disposition and that his problems during incarceration had been provoked by jailers. At the close of the punishment phase evidence, the jury answered the first special issue “yes” and the second special issue “no.” As required by statute, the trial court then sentenced appellant to death.

In his first point of error, appellant complains that he was erroneously denied the right to voir dire prospective jurors on whether they could “consider” particular types of mitigating evidence during the capital sentencing phase. Prior to the commencement of voir dire, appellant filed a “Motion to Permit Voir Dire of Prospective Jurors on Mitigating Evidence.” By that motion, appellant requested that his attorneys be permitted to question prospective jurors about “whether ... they could consider or would be willing to consider, at least in some cases, the following types of evidence in mitigation of punishment:”

(i) A capital defendant’s relative youth at the time of the crime (e.g., twenty-two years old);
(ii) The fact that a capital defendant was intoxicated at the time of the crime;
(iii) The fact that a capital defendant suffers from a medically-diagnosed form of mental or emotional illness;
(iv) The fact that a capital defendant was abused or neglected as a child;
(v) The fact that a capital defendant has exhibited positive character traits, such as having engaged in acts of kindness towards family members;
(vi) Any other relevant mitigating factor that would tend to militate in favor of a life sentence rather than a death sentence.
Defendant believes that such questions would not require a prospective capital juror to “commit” to returning a life sentence if any or all of the foregoing types of mitigating evidence were in fact introduced at trial. Nor does Defendant intend for prospective jurors to “commit” that they will assign any particular mitigating weight to such evidence if it were introduced at trial. Rather, Defendant merely wishes to inquire into whether prospective jurors could “consider” such evidence, at least in some cases, it mitigating [sic] of punishment, assuming it was introduced and jurors in fact believed that such mitigating factors were found to exist.

Appellant then continued in his motion to state that he recognized that this Court has held such questions to be improper.3 He also recognized that this Court has held that, if such questions should be allowed and a prospective juror states that he would not consider a particular type of evidence as mitigating, that prospective juror cannot be removed for cause on that basis. See Morrow v. State, 910 S.W.2d 471 (Tex.Crim.App.1995), cert. denied 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784 (1996). However, appellant propounded in his motion, as he propounds on appeal, that these eases were erroneously decided and should be revisited.

We reiterated in Green v. State, 912 S.W.2d 189 (Tex.Crim.App.1995), pet. for cert. filed (Jan. 2, 1996) (No. 95-7651), that the law does not require a juror to consider any particular piece of evidence as mitigating; all the law requires is that a defendant be allowed to present relevant mitigating evidence and that the jury be provided a vehicle to give mitigating effect to that evidence if the jury finds it to be mitigating. A trial court does not abuse its discretion by refusing to allow a defendant to ask venire members questions based on facts peculiar to the ease on trial (e.g. questions about particular mitigating evidence). Coleman v. State, 881 S.W.2d 344 (Tex.Crim.App.1994), cert. denied, U.S. , 513 U.S. 1096, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995). Appellant has given us no compelling reason to revisit our prece*4dent on this issue. We overrule point of error one.

In point of error two, appellant claims that the trial court erred in denying him an evidentiary hearing on his claim that the death penalty is administered in a racially discriminatory manner.4 Specifically, he argues that defendants are more likely to be given the death penalty when the victim is white. Appellant’s argument is purely based on existing statistical studies allegedly showing that, in Texas, the death penalty is more likely to be assessed when the victim is white than when the victim is a member of a racial minority. Appellant offers no evidence specific to his own case that would support an inference that racial consideration played a part in his sentence. This argument has been addressed and rejected by both this Court and the United States Supreme Court and, without more, we will not revisit it here. Robinson v. State, 851 S.W.2d 216, 232 (Tex.Crim.App.1991), cert. denied, U.S. , 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994); McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). We overrule point of error two.

Appellant avers in his third point of error that the trial court erred in denying his motion to voir dire prospective jurors regarding evidence of voluntary intoxication. Specifically, at trial, appellant requested the following:

Defendant intends to offer, during both the guilt-innocence and punishment phases of trial, evidence that he was highly intoxicated at the time of the alleged offense.
Section 8.04(a) of the Texas Penal Code provides that evidence of voluntary intoxication cannot be used as a defense to the commission of a crime. Section 8.04(b) provides that voluntary intoxication that rises to the level of “temporary insanity”— as defined by § 8.01 of the Penal Code— may be considered in mitigation of punishment, but only if it rises to the level of “temporary insanity.” Defendant believes that both § 8.04(a) and § 8.04(b), and any instructions submitted pursuant to those statutory provisions, are unconstitutional. Accordingly, Defendant wishes to voir dire the members of the array in a manner that would, admittedly, be inconsistent with § 8.04’s statutory commands. However, Defendant believes that such voir dire questions are permitted by both the federal and state Constitutions.

The motion then proceeds to set out argument and authorities for why the trial-court should declare §§ 8.04(a) and (b) unconstitutional and allow him to ask venire members two different questions.5 In his brief, which is simply a restatement of his trial motion, appellant conclusorily states that his proposed questions were proper simply because §§ 8.04(a) and (b) allegedly operate in an unconstitutional manner.

In his argument concerning the constitutionality of § 8.04(a), appellant claims that Texas is in the distinct minority of states that do not allow evidence of voluntary intoxication at guilVinnocence for the purpose of showing whether a defendant had the capacity to form the requisite intent for a specific intent crime. In urging us to follow the lead of these other jurisdictions, appellant claims that § 8.04(a) suffers from the same constitutional defect that plagued the trial court’s jury instruction in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

*5In Sandstrom, the United States Supreme Court reversed a conviction for “deliberate homicide,” or murder committed “purposely or knowingly,” because the trial court charged the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” The Court held that a reasonable juror might have interpreted the instruction as shifting the burden on the requisite element of criminal intent in violation of the Fourteenth Amendment’s requirement that the State prove each and every element of a criminal offense beyond a reasonable doubt.

Appellant argues that the § 8.04(a) instruction, “Voluntary intoxication does not constitute a defense to the commission of the crime,” suffers the same defect as the above utilized instruction because a reasonable juror could interpret it as precluding consideration of such intoxication evidence for any purpose, including as evidence negating specific intent. We do not find appellant’s unsupported argument persuasive.

In Sandstrom, the jury was essentially instructed, to the State’s benefit, that the defendant was presumed to have the requisite criminal intent. If the jury found that the defendant committed a voluntary act, e.g. becoming intoxicated, then they were authorized to conclude, without more, that he intended to engage in any behavior resulting from that intoxication, e.g. committing murder. Proof of intoxication, therefore, amounted to proof of criminal intent. In Texas, on the other hand, the State is required to specifically prove, beyond a reasonable doubt, that a defendant intended to commit murder, regardless of any state of intoxication. Unlike the instruction in Sand-strom, the utilization of § 8.04(a) does not directly work to the benefit of the State. Given this, appellant has not persuaded us that § 8.04(a) operated in an unconstitutional manner.

In his argument concerning the constitutionality of § 8.04(b), appellant states that a § 8.04(b) instruction submitted at the punishment phase would be a clear violation of the Eighth and Fourteenth Amendments to the United States Constitution. For authority, appellant cites us to Judge Clinton’s dissenting opinion in Ex parte Rogers, 819 S.W.2d 533, 537 (Tex.Crim.App.1991), and then generally refers us to various United States Supreme Court cases, but does not set out what exactly we are supposed to glean from these cases in relation to the issue at hand.6 Without more, we are not persuaded that § 8.04(b) operated in an unconstitutional manner. The trial judge did not abuse his discretion in overruling appellant’s motion. We overrule point of error three.

In his related points of error four and five, appellant argues that the trial court committed reversible error by denying his motion to permit jury argument “regarding evidence of voluntary intoxication as mitigating evidence” and by denying his requested instruction concerning jurors’ consideration of voluntary intoxication “as a mitigating factor.” Specifically, appellant moved the trial court that he be allowed to argue at punishment:

[TJhat jurors should consider and give mitigating effect to Defendant’s evidence of voluntary intoxication even if jurors do not believe that Defendant was rendered “temporarily insane” because of his intoxication.

Furthermore, the instruction that appellant requested advised the jurors that:

In deliberating over the special issue, you should consider as a mitigating factor the Defendant’s voluntary intoxication at the time of the crime....
Consideration of mitigating evidence does not mean that you necessarily must give such evidence any particular weight. Rather, each of you must individually decide how much weight this mitigating factor deserves, assuming that you believe that the Defendant was in fact intoxicated at the time of the crime.
*6Assuming that you believe that the Defendant was in fact intoxicated, you cannot give this mitigating factor no weight by entirely excluding it from your consideration. Your consideration of voluntary intoxication as a mitigating factor does not require that you find that the Defendant was so intoxicated that he did not know the difference between right and wrong at the time of the crime. Rather, assuming that you believe that the Defendant’s ingestion of drugs or alcohol impaired the Defendant’s sense of judgment in any appreciable manner, you must consider the evidence of voluntary intoxication as a mitigating factor.

Appellant again asserts that the alleged unconstitutionality of § 8.04(b) makes both of these requests proper. However, the constitutionality of § 8.04(b) notwithstanding, we noted in point of error one, supra, that the law does not require a juror to consider any particular piece of evidence as mitigating; all the law requires is that a defendant be allowed to present relevant mitigating evidence and that the jury be provided a vehicle to give mitigating effect to that evidence if the jury finds it to be mitigating. Green, supra. Hence, appellant would have been misstating the law had he been allowed to argue or had the court instructed the jury as he proposed. See also Colella v. State, 915 S.W.2d 834 (Tex.Crim.App.1995) (There is no per se evidence that must be viewed by a juror as creating a mitigating effect). We overrule points of error four and five.

Appellant advances in his sixth point of error that the trial court erred in failing to charge the jury that it could acquit appellant-of capital murder and find him guilty only of murder if it found that his voluntary intoxication negated the specific intent required for a capital murder conviction. Appellant concedes that Tex. Penal Code § 8.04(a) specifically provides that voluntary intoxication cannot be used as a defense to criminal liability. He also admits that the courts of this State have held that evidence of voluntary intoxication cannot be used to negate the element of specific intent. See Hawkins v. State, 605 S.W.2d 586 (Tex.Crim.App.1980). However, the entire thrust of appellant’s argument seems to be that Texas is in the minority in its view and, therefore, we should adopt the reasoning of the courts of other jurisdictions. Until and unless appellant presents us with authority binding on our own jurisdiction or provides us with a sufficiently eogent argument to warrant departure from our present jurisprudence, we decline to accept his invitation. We overrule point of error six.

In his seventh, eighth, and ninth points of error, appellant avers that he should have been allowed to voir dire prospective jurors about Texas’ parole law in capital cases and to inform them about the specifies involved. Specifically, appellant alleges that denying jurors the knowledge of a defendant’s 35 year minimum incarceration if sentenced to life in prison results in the arbitrary imposition of the death penalty in violation of the Eighth Amendment to the United States Constitution and of his due process rights under the Sixth and Fourteenth Amendments.

We have already decided these issues adversely to appellant. Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.)(plur.op.), cert. denied, U.S. , 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Willingham v. State, 897 S.W.2d 351 (Tex.Crim.App.), cert. denied, U.S. , 516 U.S. 946, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995); Broxton v. State, 909 S.W.2d 912 (Tex.Crim.App.1995); Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App.1995); Lawton v. State, 913 S.W.2d 542 (Tex.Crim.App.1995). Appellant has given us no reason to revisit our analyses in these cases, nor has he shown us any distinguishing evidence in the record or provided us with any other reason why these eases should not control in the instant case. We overrule points of error seven, eight, and nine.

In his tenth point of error, appellant contends that the provision of Article 37.071 § 2(a)7 prohibiting the trial court or the *7parties from informing the jury of the effect of their failure to agree on the punishment issues is unconstitutional. For his authority, appellant cites us to a 1948 United States Supreme Court case8 and to three cases from other jurisdictions which are not binding on this Court. However, Article 37.071 § 2(a), as amended by the 1991 Legislature, is substantively the same as the older Article 37.071(g) (Vernon 1990), which we have previously held to be constitutional on numerous occasions. Rousseau v. State, 855 S.W.2d 666, 686-87 (Tex.Crim.App.), cert. denied, U.S. , 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Felder v. State, 848 S.W.2d 85, 101 (Tex.Crim.App.1992), cert. denied, U.S. , 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993); Davis v. State, 782 S.W.2d 211, 221-22 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990). We hold that the same analysis that applied to the older version applies to the new statute. Green, supra. We overrule point of error ten.

Appellant posits in his eleventh point of error that the death penalty, as presently administered, is cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Appellant adopts the dissenting opinion of Justice Blackmun in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994). We have recently addressed this precise argument and found adversely to appellant. Lawton, 913 S.W.2d at 558. Appellant has provided us with no new arguments. We overrule point of error eleven.

In his twelfth point of error, appellant asserts that the capital sentencing scheme is unconstitutional under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment because of the many different schemes that have been in effect since 1989.

This Court has held that, when challenging the constitutionality of a statute:

[I]t is incumbent upon the defendant to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient.

Santikos v. State, 836 S.W.2d 631 (Tex.Crim.App.), cert. denied, 506 U.S. 999, 113 S.Ct. 600, 121 L.Ed.2d 537 (1992). Appellant was tried under the 1992 version of Article 37.071.9 Since appellant has simply made a global argument as to all capital defendants since 1989, and has not shown us how his specific rights were violated by application of the statute, his contentions are without merit. Sonnier, 913 S.W.2d at 520-21; Lawton, 913 S.W.2d at 559-560, We overrule point of error twelve.

In his thirteenth point of error, appellant attacks the constitutionality of Article 37.071 § 2(e) alleging that it invites the open-ended discretion condemned by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). This issue has also been addressed recently and decided adversely to appellant’s position. Lawton, 913 S.W.2d at 560; McFarland v. State, 928 S.W.2d 482, 499 (Tex.Crim.App.1996). We overrule point of error thirteen.

In point of error fourteen, appellant alleges that the trial court committed reversible error by refusing to instruct jurors that they should not consider mitigating evidence in aggravation of punishment. Specifically, appellant requested inclusion of the following instructions:

You are instructed that certain evidence introduced to you has been offered in mitigation of the Defendant’s punishment. That evidence, including youth and mental health testimony, may only be considered by you as mitigation [sic] of his punishment.
If you decide that an aspect of the Defendant’s character and record or circumstances of the crime is a mitigating circum*8stance, you must not give it aggravating effect. Thus, if in your judgment, a mitigating circumstance independently calls for a life sentence even though it also tends to support a “yes” answer to a Special Issue, you must not answer the Special Issue “yes,” but rather you should answer it “no”.

As we stated in Robertson v. State, 871 S.W.2d 701, 711-12 (Tex.Crim.App.1993), cert. denied, U.S. , 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994):

Each juror may or may not believe certain evidence is mitigating; however, the constitution only requires that where a juror believes there is relevant mitigating evidence, that juror must have a vehicle to give his or her reasoned moral response to such evidence.
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Appellant was not entitled to an instruction on what evidence was mitigating or on what weight to give any mitigating evidence presented at trial.

In light of these statements, appellant’s first requested charge is a misstatement of the law in that it essentially instructs jurors that youth and mental health are implicitly mitigating. Id. Furthermore, appellant’s second requested instruction is also a misstatement of law in light of Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Penry does not require that, if a jury finds evidence to be both mitigating and aggravating, then it should give the evidence only its mitigating weight. Zimmerman v. State, 860 S.W.2d 89, 102 (Tex.Crim.App.1993).10 In fact, Penry specifically refers to the double-edged nature of some evidence. We overrule point of error fourteen.

Appellant contends in his fifteenth point of error that the definition of “mitigating evidence” in Article 37.071 § 2(f)(4) makes the article facially unconstitutional because it limits the concept of “mitigation” to “factors that render a capital defendant less morally ‘blameworthy’ ” for the commission of the capital murder. Article 37.071 § 2(f)(4) “defines” “mitigating evidence” to be “evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” (Emphasis added.) There is no evidence that must be viewed by a juror as being per se mitigating. Instead, jurors must individually determine what evidence, if any, mitigates against the imposition of the death penalty and what weight, if any, to give that evidence in its consideration. Article 37.071 § 2(e) yields further support to this interpretation in that it requires the court to instruct the jury to take into consideration “all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant” (emphasis added) in determining whether sufficient mitigating circumstances exist to warrant a life sentence. Because the consideration and weighing of mitigating evidence is an open-ended, subjective determination engaged in by each individual juror, we conclude that Article 37.071 § 2(f)(4) does not unconstitutionally narrow the jury’s discretion to factors concerning only moral blameworthiness as appellant alleges. Lawton, 913 S.W.2d at 555-556; see also Colella, supra; McFarland, No. 71,557, slip op. at 49. We overrule point of error fifteen.

Finally, in his sixteenth point of error, appellant complains that Article 37.071 § 2(e) is facially unconstitutional in that it fails to assign a burden of proof. The failure to assign a burden of proof to the mitigation issue does not render the scheme unconstitutional. In instances where mitigating evidence is presented, all that is constitutionally required is a vehicle by which the jury can consider and give effect to the mitigating evidence relevant to a defendant’s background, character, or the circumstances of the crime. Barnes v. State, 876 S.W.2d 316, 329 (Tex.Crim.App.), cert. denied, U.S. , 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994); Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); Johnson *9v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1998). A capital sentencer need not be instructed how to weigh any particular mitigating fact in the capital sentencing decision. Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2680, 129 L.Ed.2d 750 (1994). The absence of an explicit assignment of the burden of proof does not render Article 37.071 § 2(e) unconstitutional. See Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); Lawton, supra; McFarland, supra. We overrule point of error sixteen.

Finding no reversible error, we affirm the judgment of the trial court.

. The crime was committed in October of 1992.

. Any subsequent references to Articles are to those in the Texas Code of Criminal Procedure unless otherwise identified.

. For authority for this proposition, appellant cites us to the non-published case of Hood v. State, No. 71,167 (Tex.Crim.App. Nov. 24, 1993)(not designated for publication).

. Appellant claims that this is trae in Texas, generally, and Harris County, specifically.

Appellant also argues that the trial court erred in refusing to appoint an expert to study this subject. However, appellant has not adequately briefed this latter point. Therefore, we shall not address it. Tex.R.App. Proc. 74(f). See also Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

. These two questions consist of the following:

(1) Whether prospective jurors could consider acquitting a criminal defendant of capital murder and convicting him of lesser-included felony murder if they believed that the defendant, because of his voluntary intoxication at the time of the crime, lacked the specific intent required to commit capital murder; and
(2) Whether prospective jurors could consider a capital defendant's voluntary intoxication which does not rise to the level of "temporary insanity” in mitigation of punishment.

Appellant does not here argue that these questions were proper notwithstanding the constitutionality of §§ 8.04(a) and (b). Therefore, this question shall not be addressed.

. These cases include: Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978); and Winston v. United States, 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (1899).

. The pertinent part of Article 37.071 § 2(a) reads:

The court, the attorney representing the state, the defendant, or the defendant’s counsel may not inform a juror or a prospective juror of the *7effect of a failure of a jury to agree on issues submitted under Subsection (c) or (e) of this article.

. Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 885-86, 92 L.Ed. 1055 (1948).

. The version which went into effect September 1, 1991.

. Zimmerman was remanded by the United States Supreme Court to review in light of Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). However, we reaffirmed the original holding on appeal. Zimmerman v. State, 881 S.W.2d 360 (Tex.Crim.App.), cert. denied, U.S. , 513 U.S. 1021, 115 S.Ct. 586, 130 L.Ed.2d 500 (1994).