Soria v. State

*69MANSFIELD, Judge,

concurring.

I join the well-written opinion of the majority and write separately to respond to Judge Baird’s dissenting opinion.

Over five years elapsed from the time this cause was formally submitted and argued to the date on which this Court delivered its per curiam opinion. A badly fractured Court affirmed appellant’s conviction but reformed his sentence from death to life imprisonment in an unpublished opinion. Soria v. State, (Tex.Crim.App. No. 69,679, delivered June 8, 1994). The Court, in effect, found the evidence insufficient to support the jury’s affirmative answer as to the future dangerousness special issue.

On March 29, 1995 we granted the State’s motion for rehearing and ordered the case resubmitted on May 10, 1995 without oral argument. The State contended, in its brief on rehearing, that we failed to review the evidence as to the future dangerousness special issue in the light most favorable to the verdict, as required by Jackson v. State, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and its progeny, e.g., Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992), and also required by precedent from this Court. See Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Crim.App.), cert. denied, — U.S. -, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); Hughes v. State., 878 S.W.2d 142 (Tex.Crim.App.1992); Burns v. State, 761 S.W.2d 353, 356 (Tex.Crim.App.1988); Chambers v. State, 903 S.W.2d 21 (Tex.Crim.App.1995); Joiner v. State, 825 S.W.2d 701, 703 (Tex.Crim.App.1992).

At trial, the following evidence of future dangerousness was offered by the State:

(1) testimony that appellant had planned the murder in a methodical and calculated manner over a several week period, in order to steal the victim’s vehicle and convert it to cash;

(2) testimony by a police officer as to appellant’s bad reputation in the community as a non-law abiding and violent person;

(3) evidence of appellant’s assault on another inmate while in prison and discovery of a razor in his cell;

(4) a self-portrait of appellant, interpreted by a psychiatrist for the State as evidence that appellant saw himself as an angry and violent individual. The psychiatrist testified that it was his opinion, based on his review of the case and in response to a hypothetical question, appellant would commit criminal acts of violence that would constitute a continuing threat to society; and

(5) evidence that appellant had participated, two months prior to the murder, in an unsuccessful attempt to burglarize a church.

In Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987), we adopted a list of factors we would consider in considering an appellant’s claim the evidence is insufficient to support the jury’s affirmative answer to the “future dangerousness” special issue:

(1) the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties;

(2) the calculated nature of the defendant’s acts;

(3) the forethought and deliberateness exhibited by the crime’s execution;

(4) the existence of a prior criminal record, and the severity of the prior crimes;

(5) the defendant’s age and personal circumstances at the time of the offense;

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

(7) psychiatric evidence; and

(8) character evidence.

There is little question, based on the record, this was a deliberate and planned crime committed by appellant for pecuniary gain. He abducted the complainant at gunpoint, forced him to drive to a remote area, and then killed him by stabbing him twice in the back of the head or neck. He had expressed his intent to kill the complainant on several occasions to acquaintances prior to doing so. Factors (2) and (3) of Keeton are therefore present. See also, Flores v. State, 871 S.W.2d 714 (Tex.Crim.App.1993), cert. denied, — U.S. -, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994).

*70The circumstances of the offense show a deliberate, brutal taking of a life by appellant that required close contact with the complainant, and action, i.e., use of a knife, showing a wanton and callous disregard for life. Additionally, appellant enlisted the assistance of others and directed their activities so as to facilitate commission of this offense. Factor (1) of Keeton is present. See also, Dinkins v. State, 894 S.W.2d 330, 358 (Tex.Crim.App.), cert. denied, — U.S. -, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995); Martinez v. State, 924 S.W.2d 693 (Tex.Crim.App.1996) (circumstances of the offense alone may be sufficient to support an affirmative finding as to the future dangerousness special issue).

There is psychiatric testimony in the record that appellant is likely to commit future acts of violence as well as testimony as to appellant’s bad character. This evidence meets Factors (7) and (8) of Keeton. The record is devoid of evidence appellant was under duress or was acting at the direction of another at the time of the offense; this lack of evidence therefore meets Factor (6) of Keeton.

Other than an arrest for attempting to break into a church and damaging an expensive stained glass window, appellant had no formal criminal record, though there was some testimony he had committed several minor nonviolent offenses. Appellant’s prior criminal record, in and of itself, would not support an affirmative answer as to the future dangerousness special issue; therefore, Factor (4) of Keeton is not met.

Appellant was young, eighteen, at the time of the offense. However, the record does not demonstrate he was mentally handicapped, under the influence of drugs or otherwise laboring under circumstances that would tend to militate against a finding of future dangerousness. Though arguably, Factor (5) of Keeton is met.

In summary, the evidence of future dangerousness in the present ease, analyzed by use of the eight factors set forth in Keeton, is strong and approaches being overwhelming. The majority, in my opinion, carefully analyzes the evidence and appropriately defers to the rational finding of the jury that appellant will likely commit future acts of criminal violence so as to constitute a continuing threat to society.

Judge Baird’s dissent, in my opinion, interprets Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976), incorrectly, insofar as he implies Jurek requires this Court to ignore Jackson v. Virginia and sit, in effect, as a thirteenth juror with respect to the punishment special issues in capital cases. Our opinions in this case, both on original submission and on resubmission, demonstrate the meaningful appellate review required by the Eighth Amendment and Jurek; both are characterized by cogent analysis and reasoning, taking into account applicable constitutional, statutory and case law. The fact that we now reach a different result is not evidence of a lack of integrity, response to political pressure, or a disregard of our oath of office. I state confidently that the members of this Court do not base their opinions on political considerations but base them instead on their interpretations of the law which, by the very fact there are nine of us, will often differ. Is that not the reason what we write are called opinions?

With these comments I join the opinion of the Court.