Executed July 23, 2008 06:18 p.m. CDT by Lethal Injection in Texas
14th murderer executed in U.S. in 2008
1113th murderer executed in U.S. since 1976
3rd murderer executed in Texas in 2008
408th murderer executed in Texas since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Derrick J. Sonnier
B / M / 23 - 40
B / F / 27
B / M / 2
Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App. 1995) (Direct Appeal).
Sonnier v. Quarterman, 476 F.3d 349 (5th Cir. 2007) (Habeas).
Texas Department of Criminal Justice - Executed Offenders (Derrick Sonnier)Inmate: Derrick J. Sonnier
Summary of incident
After stalking Melody Flowers for months and having his sexual advances rejected, Sonnier raped her at her Humble apartment. He then stabbed, strangled, and beat her to death. Sonnier then turned on her 2 year old son, Patrick, stabbing him to death and dumping their bodies in the bathtub.
Texas Attorney General
Monday, July 14, 2008
Media Advisory: Derrick Sonnier Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers the following information about Derrick Sonnier, who is scheduled to be executed after 6 p.m. Tuesday, June 3, 2008. On February 18, 1993, Sonnier was sentenced to die for the capital murder of Melody Flowers and her one-year-old son, Patrick, in Humble, in Harris County.
FACTS OF THE CRIME
In the summer of 1991, Sonnier, his girlfriend, and her daughter lived two apartments down from Melody Flowers and her five children in the same complex in Humble. Obsessed with Flowers, Sonnier peeped into Flowers’ bedroom and made suggestive comments to her and her teenage niece. At least twice, Sonnier slipped into Flowers’ apartment and hid in her closet in an apparent attempt to scare her.
In the afternoon of September 16, neighbors discovered Flowers’ one-year-old daughter, Morgan, crying at the door to her apartment, blood on her clothes. After neighbors looked through an open patio door and saw a pool of blood on a bed, police were called.
Police found the bodies of Melody Flowers and her son Patrick in the bathtub, partially covered by a blanket. Patrick had been stabbed twice, and Flowers had been stabbed, bludgeoned with a hammer, strangled, and stomped. Meanwhile, that afternoon, Sonnier, with a bloody towel wrapped around one hand, was spotted by a neighbor walking toward a field near the complex.
As part of their initial investigation the day of the murders, police officers knocked on Sonnier’s door. Sonnier answered and before being questioned, told the officers, “I didn’t hurt her. I am just here with my daughter.” The officers saw the Sonnier’s hand was wrapped in a bloody towel.
In Sonnier’s apartment, police found towels and a blouse, all blood-stained. One of the towels and the blouse were identified as belonging to Flowers. In a field near the complex, police discovered a plastic shopping bag containing a piece of cord, shoes, socks, shorts, and a shirt, all blood-stained. The clothes were identified as being similar to those worn by Sonnier that day before the murder. Testing showed that Melody Flowers’s DNA matched that of the blood found on one of the socks.
Oct. 29, 1992 -- A Harris County grand jury indicted Sonnier for capital murder.
Feb. 17, 1993 -- A jury found Sonnier guilty.
Feb. 18, 1993 -- After separate punishment hearing, Sonnier sentenced to death.
Nov. 29, 1995 -– The Texas Court of Criminal Appeals affirmed.
Jan. 10, 1996 -- The appeals court overruled Sonnier’s motion for rehearing.
Aug. 18, 1997 -- Sonnier filed his application for state habeas corpus relief.
Nov. 5, 2003 -- The Texas Court of Criminal Appeals denied relief.
June 4, 2004 -- Sonnier filed his initial petition for federal habeas corpus relief.
Aug. 5, 2005 -- Sonnier filed an amended petition.
Jan. 24, 2006 -- The federal district court dismissed his case.
Jan. 30, 2006 -- Sonnier filed his notice of appeal in the district court.
Jan. 22, 2007 -- 5th Circuit Court of Appeals denied certificate of appealability.
Mar. 9, 2007 -- The 5th Circuit Court denied Sonnier’s petition for rehearing.
June 5, 2007 -- Petition for writ of certiorari in the U.S.Supreme Court.
Oct. 9, 2007 -- Sonnier’s petition was denied.
April 23, 2008 -- Sonnier's execution scheduled for June 3, 2008.
June 3, 2008 -- Texas Court of Criminal Appeals stayed the execution.
June 9, 2008 -- The Court of Criminal Appeals denied habeas corpus and lifted stay.
June 13, 2008 -- Execution scheduled for July 23, 2008.
Texas Execution Information Center by David Carson.
"Texas inmate executed for slaying mom, child," by Michael Graczyk. (AP July 24, 2008)
HUNTSVILLE, Texas — Seventeen years after a suburban Houston woman and her 2-year-old son were attacked and killed at their apartment, the man convicted of their slayings was put to death. Derrick Sonnier, 40, said nothing in the seconds before his lethal injection Wednesday evening, shaking his head once from side to side when asked by a warden if he had any final statement. He nodded to a friend and cousin who watched through a window but never acknowledged five relatives of his victims watching through an adjacent window. Eight minutes later, he was pronounced dead.
"Justice can never be done," Tameka Traylor, whose mother, Melody Flowers, 27, and brother, Patrick, 2, were killed in 1991. "After 17 years, it can never be done. "What hurts the most is not about justice. It's not about him dying. That doesn't change anything. It's the many nights I had to stay up and cry and want her as a child... Taking his life, that doesn't give any kind of comfort, no type of comfort for what he took from us."
Traylor, who watched Sonnier die, was 8 when the murders occurred. "This world is a mean place," she said. "A lot of people are full of so much hate. The bad thing is our family isn't going to be the last family to have to go through this." Sonnier made a similar trip to the death house seven weeks ago but was spared when the Texas Court of Criminal Appeals stopped his scheduled punishment about 90 minutes before he could have been executed. There was no reprieve this time.
Lawyers then — on June 3 — raised questions about the legality of Texas' lethal injection procedures. That appeal, however, subsequently was rejected and no new legal efforts were attempted to save him from becoming the third Texas inmate to die this year. Executions were on hold in Texas and around the country for more than seven months until the U.S. Supreme Court in April rejected an appeal from two Kentucky prisoners who argued lethal injection was unconstitutionally cruel. Texas resumed carrying out executions last month.
Sonnier had maintained his innocence, but a Harris County jury was convinced evidence showed he was responsible for the slayings. Flowers was raped, stabbed, strangled and beaten with a hammer until its handle broke. Her child was stabbed eight times. Her body was dumped into a bathtub filled with water and the child's body was tossed on top of her.
Sonnier lived two doors away in the same apartment complex in Humble, just northeast of Houston. Neighbors called police after another of Flowers' children, a 1-year-old girl with blood on her clothes, was crying at the door of the apartment. When neighbors looked through an open patio door, they saw a pool of blood on a bed.
Police knocking on doors in the area found Sonnier with his hand wrapped in a bloody towel. "I didn't hurt her," he told officers. But inside his place they found other bloodstained towels and a blouse identified as belonging to Flowers. DNA evidence also tied him to the slayings.
Testimony showed the Sulphur, La., native grew up in Houston, had been obsessed with Flowers and had stalked her. Witnesses testified how they repeatedly chased him away from her place and that he was known to peek through her windows and even hide inside her apartment.
Sonnier initially was scheduled to die in February. That execution date, however, was withdrawn by prosecutors pending the outcome of the Kentucky case before the Supreme Court. Then on June 3, he got within about 90 minutes of punishment before Texas' highest criminal appeals court saved him.
Sonnier declined to speak with reporters in the weeks leading up to his execution. At least 15 other condemned prisoners have execution dates in the nation's most active death penalty state, including six in August.
Next week, condemned inmate Larry Davis, 40, is set to die for the gang initiation robbery-slaying of Michael Barrow, 26, at Barrow's home in Amarillo 13 years ago.
"Sonnier executed for 1991 double murder," by Kristin Edwards. (July 24, 2008 12:18am)
— A man convicted of a 1991 sexual assault and double murder was executed Wednesday at the Texas Department of Criminal Justice Walls Unit. Derrick Sonnier, who had reached the age of 40 at the time of his execution, received a lethal injection beginning at 6:10 p.m. after he declined to give a last statement. He was pronounced dead at 6:18 p.m.
“Derrick Sonnier was executed on Wednesday for the 1991 sexual assault and murder of Melody Flowers and her 2-year-old son Patrick,” said Michelle Lyons, TDCJ public information officer. “Sonnier declined to give a last statement — in fact, when he was asked if he had anything to say, he just shook his head. “He was pretty quiet and didn’t really display a lot of outward emotion.”
Sonnier’s execution marks the third execution carried out in Texas this year since the temporary halt on the lethal injection method ended in April. His execution was the first scheduled after the Supreme Court reaffirmed the lethal injection method in April, but his attorneys filed an application for a stay of execution with the Texas Court of Criminal Appeals. As the court had cases pending which addressed the lethal injection method, the stay was granted.
On June 13, after the Texas Court of Criminal Appeals had lifted Sonnier’s stay four days prior, the 179th District Court rescheduled Sonnier’s execution for Wednesday. Of the three scheduled executions this month, Sonnier’s was the second.
In a brief press conference following the execution, members of Flowers’ family spoke concerning their reaction to the execution. Tameka Flowers, Melody Flowers’ daughter who also traveled to Huntsville on the first execution date, said she was glad she returned for Thursday’s execution, but that she felt a lot of anger after witnessing his actions in the execution chamber. “I’m actually upset because this shows who he was as a person,” she said. “It really shows his character, and I hate that he was somebody we had to meet in our life. “What I feel now is a lot of anger because I didn’t see any remorse for what he had done.”
Flowers also said she did not feel that Sonnier’s death could in any way make up for the death of her family members. “Whoever decided to say lethal injection was cruel and unusual punishment to the inmates, I feel like that’s a slap in the face to everybody’s family who had to go through something like we’ve had to endure — like they never think about what we have to go through, or what we have to deal with,” she said. “If they think that’s cruel, just think about being stabbed, beaten with a hammer or strangled, or worst of all, losing a child.”
Sonnier was originally sentenced on Feb. 18, 1993, for the capital murder of Flowers and her son.
According to information released by the Texas Attorney General’s office, Sonnier lived with his girlfriend and her daughter two apartments down from Flowers during the summer of 1991. On Sept. 16, 1991, neighbors discovered Flowers’ 1-year-old daughter, Morgan, crying at the door to her apartment with blood on her clothes. After neighbors looked through an open patio door and saw blood on a bed, police were called.
In the apartment, police found the bodies of Flowers and her son in the bathtub, partially covered by a blanket. Patrick Flowers had been stabbed twice, while Melody Flowers had been stabbed, bludgeoned with a hammer, strangled and stomped.
That afternoon, Sonnier was spotted in a field near the complex with a bloody towel wrapped around one hand. As part of their initial investigation on the day of the murders, police officers went to Sonnier’s residence, where he told them before being questioned, “I didn’t hurt her. I am just here with my daughter.”
Officers noted the bloody towel on Sonnier’s hand, gained access to his apartment and found a blouse and additional towels, all blood-stained. One of the towels and the blouse was identified as belonging to Flowers. In a field near the complex, police discovered a plastic shopping bag containing a piece of cord, shoes, socks, shorts and a shirt, all of which were blood-stained and were identified as being similar to those worn by Sonnier the day before the murder. Testing showed that Melody Flowers’ DNA matched that of the blood found on one of the socks.
"Texas executes man for killing woman and infant." (Wed Jul 23, 2008)
HUNTSVILLE, Texas (Reuters) - A man convicted of killing his neighbor and her infant son was put to death by lethal injection on Wednesday in Texas, which leads the nation in executions.
Derrick Sonnier, 40, was the third person put to death in the state since the U.S. Supreme Court in April rejected a challenge to the three-drug cocktail used in most executions in the last 30 years.
He was sentenced to die for the 1991 murders of Melody Flowers and her son, Patrick. Flowers, a mother of five who lived in a Houston suburb, was raped, stabbed, beaten and strangled after she rejected his advances. The boy was stabbed twice.
Sonnier was the 408th inmate executed in Texas since 1982, when the state resumed the death penalty six years after the U.S. Supreme Court reinstated capital punishment.
Sonnier did not make a last statement or have a last meal request.
Texas has 13 more executions scheduled for this year, including six next month.
Derrick J. Sonnier, a Louisiana native, was sentenced to death for the 1991 rape and murder of a mother of five children, Melody Flowers, 27, and the stabbing death of her two-year-old son,
Patrick. Sonnier had a prior execution date of Feb. 26, 2008, which was set aside pending the Supreme Court's ruling on the constitutionality of the lethal injection process.
During his trial in 1993, evidence showed that Sonnier raped then beat Melody with a claw hammer until the handle broke off, strangled and then stabbed her with a kitchen knife. He dumped Melody's body in her bathtub. After he killed the toddler, Patrick, by stabbing him to death, Sonnier tossed his body atop his mother's in the bloody bath water.
Melody Flowers was a neighbor of Sonnier. Sonnier lived in an apartment with his girlfriend two doors from the Flowers apartment. Prior to her death, the evidence shows that Sonnier, on more than one occasion, intruded into her apartment without her knowledge or consent and scared her. Upon doing so, he would laugh and taunt her for her fear.
The precise cause of Melody Flowers’s death is unknown; it could have been from any of the four injuries she endured: (1) the bludgeoning with a hammer upon her head; (2) the asphyxia due to manual and ligature strangulation; (3) the stomping upon her chest and neck; (4) or the two stabbings to her chest. Patrick Flowers, the child victim, died from being stabbed twice in the chest, one of which penetrated his heart; he was thereafter submerged in a bathtub.
Jurors learned that Sonnier stalked Melody Flowers for two years before the killings. From a Houston Chronicle article published on May 25, 2008: It was midnight, but Melody Flowers had to get something off her chest. The single mother of five woke her eldest. "If something should ever happen to me," she whispered to 8-year-old Tameka, "I want you to know that I will always love you all. I want you to be there for your brothers and sisters. Even if you are not able to see me, I'm still with you all."
The next afternoon, the 27-year-old Flowers was dead. She had been bludgeoned with a claw hammer, raped, strangled and stabbed. Her body was dumped in the partially filled bathtub of her Humble apartment. The lifeless body of her toddler, Patrick, also stabbed, lay on top of her. For her surviving children, the years that followed were cruel. She was the only one who showered them with love. Without it, they felt as though they were little more than burdens. Now, 17 years later, memories of the horrific murders and the years that followed came to the fore with word that their mother's killer would be executed.
Derrick Sonnier, who authorities said stalked Flowers for months, was convicted of the Sept. 16, 1991, murders and sentenced to die. On June 3, the 40-year-old will be the first in Texas to be executed since the U.S. Supreme Court upheld the constitutionality of lethal injections last month. He initially was set to enter Texas' death house on Feb. 26, but Harris County prosecutors voluntarily set aside the date to await the high court's ruling.
Sonnier has declined interview requests. During his trial, Sonnier claimed authorities had the wrong man. He told police he had been alone in his apartment. Tameka Traylor, 25, and Sebrina Flowers, 23, Melody Flowers' daughters, plan to witness his execution in Huntsville. "He took everything from us," said Traylor, now a married mother of four. "Nothing will ever bring Melody and Patrick back or remove all the hurt and pain we had to endure. When he gave them the death sentence, he took the only person that loved us away from us ... and my brother didn't even have a chance to live his life." After the murders, the children lived apart for years while being raised by different family members.
The youngest daughter, Morgan, spent most of her life in Lubbock with her father. She now is back in the Houston area. "We really don't know anything about her," Traylor said, "because she was never around us growing up. She was taken from us." Through Traylor, Morgan and their brother, Reginald, declined to be interviewed for this story. During their upbringing, Traylor said, she and two of her siblings felt as though no one really cared what became of them. No one even made sure they went to school, she said.
Melody Flowers' three oldest children - Tameka, Sebrina and Reginald - first were sent to live with their grandparents, who already were raising two other grandchildren on a limited budget. When their grandparents became too frail to care for them, the trio, then in their early teens, was separated. Reginald and Sebrina Flowers were sent to live with their father, while Traylor, who had a different father, lived with an aunt. Later, Sebrina Flowers ran away from home to live with Traylor. In high school, Traylor said, she became sexually active out of a need to find love. She dropped out after becoming pregnant.
Today, Flowers' eldest children are raising their own families and remain close. The three rarely see their sister Morgan, who is about to graduate from high school. In 1991, it was Morgan's cries that led authorities to the grisly murder scene. The 1-year-old was found wailing outside the family's apartment, dressed in a bloodied diaper. Inside, police found overturned furniture and blood all over - an indication that Melody Flowers put up a fierce fight for her life. A broken hammer investigators said was used to deliver crushing blows to her head was found in the hallway. She had been strangled with a rope, and when that failed the killer used his hands. He also stomped on her throat and stabbed her twice in the chest. Patrick was stabbed eight times. He was 2 and had just learned to talk.
When Tameka, Sebrina, 7 at the time, and Reginald, who was 4, returned home from school, a neighbor kept them away from the crime scene until their grandparents arrived. The neighbor fed them corn dogs and gave them other snacks, but she kept escaping to her bedroom to use her telephone, Traylor remembers. "She didn't want us to know at that time what had happened," Traylor said. Sebrina Flowers said that as she and her brother sat in a police car, he told her he had to eat all of his lollipop before Patrick came around. "Our grandparents took us to the scene, and I remember seeing the yellow tape around our patio door," Traylor said.
"The first thing I did was start screaming for my mom. I tried to run, and I broke loose from whoever was holding me. One of the police officers grabbed me." Sebrina Flowers, now a mother of five, remembers seeing the covered bodies of her mother and brother being removed from the apartment. "They had already explained to us what happened," she said. The senselessness of the killings and the painful last moments of her mother's life still weigh heavily on Traylor.
She began seeing a counselor when she learned of Sonnier's execution date. "To this day, it still hurts," she said. "Just having everything, being secure and happy and all that, just taken away from you for no reason at all." A few weeks ago, she wrote Sonnier a letter, telling him that although he robbed her and her siblings of a life with their mother and brother, they no longer were his victims. She told him she no longer felt hatred for him.
Still, she and her sister want to hear him confess and apologize for the murders. "We had very, very hard lives growing up, and if my Mom were alive we wouldn't have had to go through so much," Traylor said. "He needs to understand what he did and what he took from us." Melody Flowers' children cling to their memories of her, of how she played with them, how she encouraged them to do well in school, and how she loved to make them spaghetti. The sisters said they are raising their own families as their mother would have raised them. "We still have our heads up, and we're still moving forward," Traylor said. "Everything she placed in us when we were children we still carry that in us." Her mother kept her word.
Derrick Sonnier-Bey # 999054
Polunsky Unit D.R.
3872 FM 350 South
Livingston - Texas 77351
I am a moorish American, 37 years of age, born October 26, 1967 in Louisiana, raised in Houston, Texas. I'm 5'11, 170 pounds. I'm sorry girls I don't have a photo. If you need more information hit me back with a "Q and A". Until Pen and Paper again or whatever the future unfolds.
Peace and Blessings
Sincerely, Derrick Sonnier-Bey
22 May 2008
USA (Texas) Derrick Sonnier (m), black, aged 40
Derrick Sonnier is scheduled to be executed in Texas on 3 June. He was sentenced to death in 1993 for the murder of his neighbor and her young son in 1991. Derrick Sonnier has been on death row for 15 years.
The jury voted to convict Derrick Sonnier, and the trial moved into its sentencing phase. The defense presented no evidence and no witnesses whatsoever. This was at the defendant’s instruction. Derrick Sonnier’s trial lawyers later testified during the appeals process that there had been members of his family who were present in the courtroom who they had intended to call as mitigation witnesses on his behalf. They said, however, that Sonnier had refused to allow them to present such testimony despite their advice that it would be beneficial to do so.
After the judge had confirmed with Sonnier that this was his position, the sentencing went forward without any mitigation evidence. The prosecutor’s final argument for a death sentence stressed this to the jury: “If there was a parade of character witnesses to say what a fine man this is, you know you would have heard those too.” The jury voted for the death penalty.
Since the trial, it has been shown that the trial lawyers did minimal investigation and preparation of the witnesses they said they had intended to call – for example, both Sonnier’s mother and stepmother later testified that they had had only brief conversations with the trial lawyers shortly before the trial, were never interviewed about Sonnier’s background or asked to testify about him.
The US Court of Appeals for the Fifth Circuit found that the lawyers had done only a “truncated investigation” of character witnesses, and “did not talk to Sonnier’s family and acquaintances at the length or in the depth required” for the purpose of preparing a mitigating defense. It concluded that the lawyers had “stopped short of making a reasonable investigation for purposes of uncovering relevant mitigating evidence that could have been useful in reaching two goals that it was their duty to pursue: (1) fully informing Sonnier of all available mitigating evidence and their opinion of its potential effectiveness based on their professional knowledge and experience; and (2) persuading the sentencing jury that
Sonnier’s moral culpability was not sufficient to warrant the death penalty”. However, a successful appeal on a claim of inadequate legal representation is difficult to achieve under US constitutional law. The prisoner must prove that not only was the trial counsel’s performance sub-standard, but that this had altered the outcome of the trial. In Derrick Sonnier’s case, the Fifth Circuit concluded that he had failed to prove this second aspect. Although the Fifth Circuit said that the mitigation evidence would have shown positive aspects of his character, it concluded that it still would not have outweighed the aggravating facts of the crime, and the trial outcome would have been the same.
Ultimately, a post-conviction assessment – however carefully made – of how a jury would have voted if it had been presented with particular evidence effectively amounts to judicial guesswork, clearly troubling when a life is at stake. Moreover, when defendants refuse to allow their defense counsel to present available mitigating evidence, for whatever reason, it feeds into the arbitrariness of the death penalty. The mandatory death penalty has long been ruled unconstitutional in the USA, and the capital sentencing decision is supposed to be individualized, with the jury being able to take into account any mitigating evidence and the prosecution presenting the reasons why the defendant should be executed rather than imprisoned.
As a US Supreme Court Justice said in 1979, “This Court’s toleration of the death penalty has depended on its assumption that the penalty will be imposed only after a painstaking review of aggravating and mitigating factors.” If the defendant refuses to allow any mitigating evidence, despite its availability, the system comes closer to tolerating a quasi-mandatory death sentence, with the jury not in a position to take into account the background and circumstances of the defendant to weigh against the facts of the crime and the government’s bid for a death sentence.
At the jury selection for Sonnier’s 1993 trial, the judge refused to allow the defense to inform the jurors that Sonnier would be ineligible for parole for 35 years if convicted and sentenced to imprisonment rather than death. In 1994, the US Supreme Court ruled that in cases where a state argues for execution based on the notion of a defendant’s future dangerousness – in Texas, the jury’s finding of future dangerousness is a prerequisite for a death sentence – the defendant must be allowed to respond by showing that if sentenced to life imprisonment, he or she would not be eligible for parole. However, at the time of Sonnier’s trial, the choice facing the jury was only the death penalty or life imprisonment with the possibility of parole, albeit only after 35 years. Sonnier’s case has been deemed not to fall within the scope of the 1994 precedent.
There have been 1,101 executions since judicial killing resumed in 1977, 405 of them in Texas. In late 2007, the UN General Assembly passed a landmark resolution calling for a worldwide moratorium on executions. Amnesty International opposes the death penalty in all cases, unconditionally. There is no such thing as a humane, fair, reliable or useful death penalty system (see ‘The pointless and needless extinction of life’: USA should now look beyond lethal injection issue to wider death penalty questions, http://www.amnesty.org/en/library/info/AMR51/031/2008/en).
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
- expressing sympathy for any family of Melody and Patrick Flowers, and explaining that you are not seeking to
excuse the manner of their deaths or to downplay the suffering caused;
- opposing the execution of Derrick Sonnier;
- expressing concern that the jurors who sentenced Derrick Sonnier to death had heard no mitigating evidence, despite the availability of such evidence, noting that the Fifth Circuit Court of Appeals found that he had received inadequate defense representation;
- pointing out that the power of executive clemency is not restricted by rules of procedure and precedent in the way that the courts are;
- calling for Derrick Sonnier to be granted clemency, and for his death sentence to be commuted.
Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App. 1995) (Direct Appeal).
Defendant was convicted in the 179th District Court, Harris County, Michael Wilkinson, J., of capital murder and sentenced to death. He appealed. The Court of Criminal Appeals, Meyers, J., held that: (1) evidence supported convictions; (2) photographs of victims' bodies were admissible; (3) evidence supported finding of future dangerousness; (4) death penalty article was constitutional; and (5) defendant's voluntary but mistaken choice not to allow his attorney to present mitigating evidence provided no grounds for reversal. Affirmed. Clinton, J., concurred in the result. Baird, J., concurred with note.
In February 1993, appellant was tried and convicted under Texas Penal Code § 19.03 of capital murder. The offense, a double murder, was committed on September 16, 1991. The jury affirmatively answered the special issue submitted under Article 37.071 § 2(b)(1).FN1 Appellant was sentenced to death as mandated by Article 37.071 § 2(g). Article 37.071 § 2(h) provides direct appeal to this court. Appellant raises thirteen points of error. We affirm.
I. Sufficiency of Evidence
In his first point of error appellant challenges the sufficiency of the evidence to establish his guilt beyond a reasonable doubt of capital murder. In point of error four appellant challenges the sufficiency of the evidence to affirmatively answer the first special issue (continuing danger). Art. 37.071 § 2(b)(1).
Appellant committed the offense sixteen days after the amended version of Article 37.071 became effective on September 1, 1991. The deliberateness special issue was replaced with the continuing danger to society special issue. Sufficiency reviews of either the guilt-innocence or sentencing stages of a trial require that, while viewing the evidence in the light most favorable to the verdict, we ask whether evidence exists from which any rational trier of fact could have made the challenged finding beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993). The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). Because the arguments raised are best understood in context of the evidence presented at appellant's trial, we briefly review the facts of the offense as established at trial and in the light most favorable to the verdict.
Shortly before 2:00 p.m. on September 16, 1991, Melody Flowers received a telephone call at her apartment, number 88, from her sister. Melody informed her sister that she had just returned from an errand and was preparing herself and her two infant children Patrick, two years old, and Morgan, one year old, for a nap. Around 3:00 p.m. Morgan was discovered crying at the door of her apartment by a neighbor, Henderson. Henderson thought the situation odd and attempted to find Melody. Unable to find her, he peeked into her window and saw blood. He went to get the apartment manager. The manager entered the apartment, saw blood everywhere and immediately called the police. When the police arrived, they discovered the bodies of Melody and Patrick submerged in the bathtub. Patrick had been stabbed to death. Melody had been bludgeoned with a hammer, strangled, stomped, and stabbed.
Another neighbor, Thomas, who had been sitting outside, informed the police that between 2:15 and 3:00 p.m. he had seen appellant walking toward a field near the apartment complex. Thomas stated that appellant had a bloody towel wrapped around one hand and was carrying a “Fiesta” grocery store bag with a cardboard soda carton sticking out of it. When Thomas called out in greeting to him, appellant ignored him and continued in a hurried pace. Thomas told the police that when appellant reached the corner of the building, he stopped, peeked around the corner, and looked behind him before continuing.
Henderson testified that soon after the bodies were discovered, he saw appellant walking toward his apartment with a bloody towel wrapped around his hand. Henderson asked him if he had heard about Melody Flowers. Appellant answered “no.” Henderson testified that he told appellant that “something” had happened to Melody Flowers. Henderson specified that “something” had happened because he did not know at that point what had happened.
D. Mosley testified that her middle school let out at 2:40 p.m. and that when walking home, she saw appellant walking along the road adjacent to the apartments and an open field. Appellant was not carrying anything. D. Mosley allowed herself into her apartment, number 90, where she lived with her mother and appellant. Appellant arrived a few minutes later. His hand was wrapped in a bloody towel. When D. Mosley asked about the injury, appellant ignored the question, but a few minutes later appellant yelled from the kitchen that he had at that moment cut his hand. Appellant told D. Mosley that he thought something was wrong with Patrick and Melody Flowers.
When the police knocked at the front door, appellant answered the door and immediately stated “I didn't hurt her.” When the police asked him what had happened to his hand appellant answered that he had cut it while slicing sausage. D. Mosley testified that she, not appellant, had sliced the sausage, that was cooking when the police arrived. Appellant's cut required nine stitches.
When L. Mosley arrived home, she consented to a police search of her apartment. The police discovered a bloody teddy-bear towel, a bloody Garfield towel, and a bloody blouse in a trash bag in Mosley's hall closet. L. Mosley identified the teddy-bear towel as hers, but denied ownership of the Garfield towel and the blouse. L. Mosley informed the police that her friend, Melody Flowers, owned Garfield towels and a blouse like the one found in her trash.
T. Knowles, Melody Flowers' boy-friend, testified that Melody kept a set of Garfield towels like the one found in Mosley's apartment. He testified that he had given the bloody blouse found in L. Mosley's closet to Melody.
Searching the field between the apartment complex and the middle school, the police discovered a “Fiesta” grocery sack with a soda carton sticking out of it under a bush. It contained a bloody piece of cord, a pair of bloody shoes, a pair of bloody socks, bloodied shorts and a bloodied shirt. L. Mosley testified that when she had left for work around 2:00 p.m. on the day of the offense, appellant had been wearing unsoiled clothes identical to those discovered in the bag. She identified the shoes as some she had given to appellant.
A. Flowers, the eighteen-year-old niece of Melody Flowers, testified that when she had spent the summer with her aunt, there had been several encounters between appellant and her aunt. On one occasion appellant had accosted A. Flowers and her aunt with lewd comments about their attire. On another occasion she and her aunt had been in the living-room when they heard a noise in the bedroom. They discovered appellant in the bedroom. When Melody, naturally upset by the intrusion, demanded to know what appellant was doing in her home, he laughed and responded that she was scared. A. Flowers also recounted that on another occasion her aunt, her nieces and nephews, and she were lying on her aunt's bed watching television. After a few hours, at about 11:00 p.m., they were startled by a rapping on the wall. To their horror, they discovered appellant hiding in the closet of the bedroom. He had been there at least three hours. Again appellant responded to Melody's visible and verbal anger by remarking that she was scared.
S. Flowers, eight-year-old daughter of Melody, testified that on her birthday, she had been hiding balloons in her mother's bedroom closet and was startled by appellant standing just outside of the sliding door of the bedroom. He was looking into the bedroom. When she returned with her mother, they found appellant in the bedroom closet. T. Knowles testified that Melody Flowers had expressed fear of appellant and that he had warned her to stay away from him.
Dr. T.J. Brown, pathologist, testified that Melody Flowers suffered four fatal injuries, each of which could have caused her death. She sustained blunt trauma to the head. A hammer head with human hair was found in the victims' apartment. The victim suffered blunt trauma which crushed her neck bones; she was stomped on the chest and neck. She suffered asphyxia due to both manual and ligature strangulation; a bloody cord was found in the “Fiesta” grocery bag. Melody was also fatally stabbed twice in the chest. The bloodied condition of the victims' apartment and the multiple ligature marks on Melody's neck indicated that she had struggled fiercely for her life. The strangulation, beatings, blunt trauma to the head, and the stabbing all occurred before Melody Flowers died.
Patrick Flowers' death was caused by two stab wounds to the chest, one of which penetrated the heart. Because of the profuse bleeding caused by the wound to the heart, Patrick probably died within a minute of receiving the wound.
A blood splatter expert testified that there was no evidence of blood splatter in the master-bedroom, only a blood soak on the bed consistent with someone having been stabbed on the bed. In the childrens' bedroom there was blood a soak and a drag mark consistent with a small body having been stabbed on the bed and then dragged off. In the living-room the blood stains indicated that someone had fallen, bleeding, and was there beaten or stabbed. Blood splattering in the bathroom was consistent with someone having been bludgeoned there.
Blood, semen and DNA testing was mostly inconclusive. Appellant could neither be positively connected to the offense through this scientific evidence nor be positively ruled out as a suspect. However, DNA testing did establish that blood taken from one of the socks in the grocery store bag matched the blood of Melody Flowers, but could not have been appellant's own blood.
Evidentiary Sufficiency of Guilt
In point of error one, appellant alleged the State's evidence did not establish beyond a reasonable doubt that he committed the offense. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Tex.Penal Code § 2.01. Appellant acknowledges that in Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), we abandoned the reasonable alternative hypotheses analysis for reviewing the sufficiency of circumstantial evidence, but nevertheless urges us to return to that analysis when reviewing circumstantial evidence. He argues that the reasonable alternative hypotheses analysis is more workable, meaningful, and accurate than the Jackson standard. After careful review of appellant's arguments we remain convinced that our decision to abandon the alternative hypotheses analysis was correct and refer appellant to our thorough discussion of our decision. Geesa, 820 S.W.2d at 155-161.
Though the evidence against appellant was entirely circumstantial, it was nevertheless extremely incriminating: Appellant had stalked the victim, several times entering her apartment and hiding for hours in her closet. He apparently took delight in frightening her. He was at the scene of the crime at the time of the offense with a serious cut on his hand, and acting peculiarly. The victim's bloodied clothes were found in his apartment, and his own blood stained clothes, soiled with the victim's blood, were found in a vacant lot near his apartment. Appellant was seen discarding the bag in which his bloodied clothes were discovered around the time of the murders. The evidence supports a rational finding, beyond a reasonable doubt, that appellant committed the charged offense. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Appellant's first point of error is overruled.
Evidentiary Sufficiency at Sentencing
Article 37.071 § 2(b)(1) requires the jury to answer “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The State presented no evidence of appellant's danger to society besides the facts of the offense; but we have held that the circumstances of the offense and the facts surrounding it may furnish greater probative evidence than any other evidence regarding the probability of future acts of violence and may alone establish an affirmative answer to the special issues. Flores v. State, 871 S.W.2d 714, 716 (Tex.Crim.App.1993) cert. denied, 513 U.S. 926, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994).
First, appellant argues that our precedent, holding that the facts of the offense alone may be sufficient to establish an affirmative answer to the dangerousness special issues, is inapplicable to his case. Appellant notes that under the previous version of Article 37.071, when a jury considered the danger posed to society by a defendant, they had already determined that he had committed the murder deliberately. Appellant argues that since a finding of deliberation is no longer required, see Article 37.071 § 2(b), the facts of the offense may no longer alone support, beyond a reasonable doubt, the finding that a defendant is a future danger.
This argument has some merit in terms of the weight of the evidence; a murder committed deliberately is more probative of future dangerousness than evidence of a murder committed intentionally. But, the weight given to particular evidence is within an individual juror's prerogative and not an appropriate consideration in reviewing the sufficiency of evidence. Chambers, 805 S.W.2d at 461. Since an appellate court may not properly assign weight to particular evidence, it would have been inappropriate for us to hold that evidence of an offense committed with deliberation can support a finding of future dangerousness merely on the assumption that it is more probative of future dangerousness than evidence of an offense committed only intentionally. Moreover, nothing in that precedent indicates that the finding of deliberation was a significant consideration in our holdings. We do not deny that evidence of a murder committed with calculation, deliberation, or premeditation is evidence of future dangerousness. We merely reject the suggestion that the absence of a formal finding of deliberation by itself renders the facts of the offense alone incapable of supporting a finding that a defendant is a continuing threat to society. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).
Next, appellant argues that at most the evidence presents only an isolated incident of rage and proved nothing about his potential for future acts of violence. Appellant ignores that the extreme brutality and violence of his offense betray a “most dangerous aberration of character which would support a jury's affirmative finding” that he is a continuing danger. Tucker v. State, 771 S.W.2d 523, 527 (Tex.Crim.App.1988), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 578 (1989). Appellant heinously murdered M. Flowers and her two-year-old son. M. Flowers' murder involved needless and vicious brutality; Appellant stabbed, strangled, bludgeoned her head with the claw of a hammer, and crushed her neck by stomping it. The condition of the apartment suggested that appellant followed M. Flowers, stabbing and beating her, throughout her apartment as she apparently struggled for her life and the lives of her children. The murder of P. Flowers, an infant still learning to speak, was wanton; the infant was fatally stabbed through the heart as he lay on his bed and his body was dragged to the bathroom where it was tossed in the bathtub atop his mother's corpse. He was stabbed eight times. The jury could rationally conclude from the results of appellant's isolated incident of rage that his rage is of such an uncontrollable and extreme nature that he is a continuing danger to society. See, Joiner v. State, 825 S.W.2d 701, 704 (Tex.Crim.App.1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125 L.Ed.2d 729 (1993) (One victim was found to have been stabbed four times in the chest and further received a series of lacerations on her neck. The other victim suffered forty-one stab wounds to her chest, blunt force trauma to her head, lacerations to the head, and, her throat had been slashed); Cass v. State, 676 S.W.2d 589, 593 (Tex.Crim.App.1984) (Shocking circumstances of the offense established continuing danger to society); King v. State, 631 S.W.2d 486 (Tex.Crim.App.), cert. denied, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982) (remorseless brutality of the manner in which he obliterated another human life evinced continuing danger to society). Appellant's fourth point of error is overruled.
In point two, appellant argues that the trial court committed reversible error in not permitting him to question the venire regarding the mandatory imprisonment of thirty-five years if he was given a life sentence. Appellant argues on appeal that the question was proper and necessary to the intelligent exercise of challenges for cause and peremptory strikes. However, we have recently held that “[a]bsent a federal constitutional requirement to the contrary, it will remain the policy of Texas not to officially inform jurors of the actual consequences of a life sentence.” Smith v. State, 898 S.W.2d 838, 849 (Tex.Crim.App.1995), Broxton v. State, 909 S.W.2d 912 (Tex.Crim.App.1995), Reh'g denied, Broxton v. State, No. 71,488 (Nov. 15, 1995). Accordingly, because jurors are not entitled to consider these consequences in deliberating their verdict, their attitude toward the mandatory imprisonment law about which appellant wished to question them was irrelevant to the intelligent exercise of peremptory challenges in the case. Appellant's second point of error is overruled.
Video Tape and Photographs
Appellant avers in point of error three that the trial court erred in admitting into evidence video recordings and photographs of the bodies of the victims as they were discovered. Appellant argues that the prejudicial nature of the photographs greatly outweighed their probative value. Tex.R.Crim.E. 403. The State argues that error was not preserved for review and alternatively that the trial court did not abuse its discretion because the prejudicial value of the evidence did not outweigh its probative value.
Regarding the video recording, which apparently depicts the scene of the crime as it was discovered, we agree that appellant has not preserved error. When the video recording was introduced appellant offered only a general objection to the entire recording; on appeal he complains only of the depiction of the victims' bodies, as found, in the bathtub. When an exhibit contains both admissible and inadmissible evidence, the objection must specifically refer to the challenged material to apprise the trial court of the exact objection. Brown v. State, 692 S.W.2d 497, 501 (Tex.Crim.App.1985). Moreover, under Rule 50(d) of the Texas Rules of Appellate Procedure, it is appellant's burden “to see that a sufficient record is presented to show error requiring reversal.” This means that appellant must designate for the record on appeal all that is necessary for our review. See also Tex.R.App.Proc. 51 and 53. The record does not contain the original or certified copy of the video recording. Having failed to enter a definite objection at trial and to designate a sufficient record to comply with the rules of appellate procedure, appellant presents no error for our review regarding the video recording of which he complains.
The Texas Rules of Criminal Evidence, Rule 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Several factors may be considered in determining whether the danger of unfair prejudice substantially outweighs the probative value of photographs including ... the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed [, and] ... the availability of other means of proof and the circumstances unique to each individual case. Emery v. State, 881 S.W.2d 702, 710 (Tex.Crim.App.1994) (emphasis added), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995) quoting Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992). Ultimately, the admissibility of photographs over any challenge is within the sound discretion of the trial judge. Jones v. State, 843 S.W.2d 487, 500 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Narvaiz v. State, 840 S.W.2d 415, 428-430 (Tex.Crim.App.1992); Burdine v. State, 719 S.W.2d 309, 317 (Tex.Crim.App.1986).
The four photographs of which appellant complains depict the victims' bodies as discovered in the bathtub filled with bloodied water. Exhibit 99-MM focuses on the body of Melody Flowers with part of Patrick Flowers' body visible in the picture. Exhibit 99-NN depicts the corpse of P. Flowers thrown atop his mother's corpse with his head submerged in the bloody water. Exhibit 88-OO depicts the blanket which was thrown over the bodies. And, exhibit 88-PP is a close-up of M. Flowers' nude corpse; a stab wound to the chest is visible. According to the briefs the original exhibits were 8 x 10, color photographs presented together as a single exhibit. Nothing was depicted in the photographs which was not also included in the testimony of various witnesses. Appellant does not allege any tampering, enhancement, or attempt by the State to inflame, confuse, or mislead the jury in its presentation of the photographs.
The photographs are gruesome. That is to say, they are disagreeable to look at, but they depict nothing more than the reality of the brutal crime committed. The photographs are powerful visual evidence, probative of various aspects of the State's theory of the offense including the brutality and heinousness of the offense. Appellant must realize that it is precisely the quality which we describe as “powerful” which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome. Burdine, 719 S.W.2d at 316; Narvaiz, 840 S.W.2d at 429. The trial court did not abuse its discretion in admitting the video recording or photographs of which appellant complains. Appellant's third point of error is overruled.
In point of error five appellant argues that Article 37.071 as amended is violative of the Eighth and Fourteenth Amendments to the United States Constitution. Appellant argues the deletion of the deliberateness special issues FN3 regresses from the safeguards against “wanton” and “freakish” application of the death penalty found in the former Article 37.071, with the result that the assessment of the death penalty has once again become unacceptably arbitrary and erratic. See Branch v. Texas, decided with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Acknowledging that in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the United States Supreme Court held that our capital punishment scheme was not unconstitutional, arbitrary or erratic, appellant argues that Jurek is no longer controlling because of the amendments to Article 37.071.
FN3. Prior to September 1, 1991, Article 37.071(b)(1) required an affirmative answer to the questionwhether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result. See also Art. 37.0711. For offenses, like appellant's, committed on or after September 1, 1991 this special issue was deleted.
In Jurek the Supreme Court focused on two aspects of our sentencing scheme. First the court focused on the narrow statutory definition of capital murder found in Section 19.03 of the Texas Penal Code. Id. at 270-271, 96 S.Ct. at 2955-2956. Thereafter, Justice Stevens, writing for the Court, focused on Article 37.071 asking whether it provided a vehicle for consideration of mitigating evidence; focusing entirely on the second special issue (future dangerousness), he found it could provide a sufficient vehicle for the consideration of mitigating evidence. Id. at 271-273, 96 S.Ct. at 2956-2957. The Jurek court in no way suggested that the question of deliberation was pivotal to its decision; to the contrary, an honest reading of the opinion suggests that the question of deliberation was irrelevant to the Court's concerns and analysis under Furman.
In Jurek, the Supreme Court held: Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. It would appear that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death. 428 U.S. at 273-274, 96 S.Ct. at 2957. There is nothing in the amendments to Article 37.071 which would change this holding. Indeed, the addition of the new special issue regarding mitigating evidence brings Article 37.071 into further compliance with the concerns of the Eighth Amendment as expressed by the Supreme Court in Jurek. Point of error five is overruled.
In points of error six and eight, appellant respectively challenges the constitutionality of Article 37.071 under Article I, Section 13 of the Texas Constitution, which states that cruel or unusual punishment shall not be inflicted, and Article I, Section 3, guaranteeing equal protection of law. Appellant raises the same arguments in point of error six that he raised under point of error five, and in point eight identical arguments as raised under point seven. Appellant adds that even if he does not prevail under the federal constitution, he prevails under the broader protections of the Texas Constitution.
Appellant provides no arguments or authorities supporting his position that the Texas Constitution offers greater protections against cruel and unusual punishment and broader understanding of equal protection than does the United States Constitution. Appellant argues that we should hold that the Texas Constitution offers greater protections merely because we have the authority to do so. Appellant argues that we have a responsibility to do so in the face of an increasingly conservative United States Supreme Court.
That we have the authority to find that the protections offered by the Texas Constitution are broader than corresponding protections of the federal constitution, does not prove that, in fact they are so. Before we exercise our authority, appellant must present argument and authority convincing us that his assertions of greater protection are in fact correct. In the case at bar, appellant proffers no such argument or authority. Without such argument or authority, not only is his argument unconvincing, it is also inadequately briefed. Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App.1992); Robinson v. State, 851 S.W.2d 216, 222 n. 4 (Tex.Crim.App.1991); Morehead v. State, 807 S.W.2d 577, 579 n. 1 (Tex.Crim.App.1991); McCambridge v. State, 712 S.W.2d 499, 501-502 n. 9 (Tex.Crim.App.1986); Tex.R.App.Proc. 74 and 210. We decline to pursue appellant's arguments for him. Appellant's sixth point of error is overruled.
In points of error seven and eight, appellant argues that the amendments to Article 37.071, particularly the elimination of the first special issue (deliberation), are violative of the equal protection guarantees of the federal and state constitutions, respectively. Appellant argues that the equal protection of law entitles him to the same procedures as all similarly situated defendants, i.e., all those being tried for capital murder at the same time. Appellant argues that the peculiar effective date of Article 37.071 has created a situation in which two capital trials conducted on the same day may follow different procedure depending on the date the offense was committed. This situation is not violative of appellant's right to equal protection.
The Equal Protection clause of the federal constitution requires that “all persons similarly situated shall be treated alike” under the law. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Thus, to initiate his claim appellant must establish that he is not being treated the same as others “similarly situated.” See Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977). But, appellant was treated in the same manner as all those who committed a capital murder after September 1, 1991; that is, he is treated the same as all those “similarly situated.” See also, Dinkins v. State, 894 S.W.2d 330, 341 (Tex.Crim.App.1995). Regarding his equal protection claim under Article I, Sect. 3 of the Texas Constitution, appellant concedes that to the extent we have addressed Article I, Section 3 we have found no broader protections than those contained in the Fourteenth Amendment. Rucker v. State, 170 Tex.Crim. 487, 342 S.W.2d 325 (1961). Appellant presents no compelling reason to divert from this precedent. His seventh and eighth points of error are overruled.
In his ninth point of error, appellant argues that the trial court erred in instructing that the jury was not to consider or discuss the parole ramifications of a life-sentence and in failing to instruct the jury that a life-sentence carries a mandatory minimum thirty-five years imprisonment. Appellant cites no authority supporting his arguments other than general allegations that his sentence violates the proscriptions against cruel and unusual punishment in the federal and state constitution.
Appellant ignores the strong body of jurisprudence holding that parole is not a proper jury consideration in capital murder deliberations. We have repeatedly held that “in Texas, parole is not a matter for a jury's consideration in a capital murder trial.” FN4 See e.g., Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.1995), cert. denied 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995). Recently, in Smith we rejected arguments that the prohibition against the consideration of parole violates constitutional prohibitions against cruel and unusual punishments. Smith, 898 S.W.2d at 846. Appellant presents no factual or legal distinctions that remove his case from the authority of this precedent. Appellant presents no reversible error; his ninth point of error is overruled. FN4. Jones v. State, 843 S.W.2d 487, 495 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993); Ellason v. State, 815 S.W.2d 656, 665, n. 5 (Tex.Crim.App.1991); Stoker v. State, 788 S.W.2d 1, 16 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990).
In point of error ten, appellant alleges that the trial court committed reversible error in failing to charge the jury with an “application paragraph.” We deduce that appellant's challenge is to the punishment charge. Appellant does not argue that an application paragraph was made necessary by a particular issue raised in his case. He argues that an application paragraph is always required in jury charges, and that its exclusion is always reversible error. Appellant relies on Williams v. State, 547 S.W.2d 18, 19 (1977).
Williams stands for the proposition that a trial court must include an application paragraph in its jury charge at the guilt-innocence phase of trial. But, appellant's case involves a punishment-charge in a capital murder trial in which the State sought the death penalty; this presents vastly different factual and legal concerns from those addressed in Williams.
Firstly, no statutory authority requires an application paragraph in the punishment charge of a capital murder trial. Article 36.14 governs the jury charge at the guilt-innocence phase of a trial, but the punishment phase of a capital trial is governed by Article 37.071. Article 37.071 is “so to speak, a formbook presentation of that which must be submitted to the jury” without “mention of objections to or requested instructions for inclusion in the charge, nor any reference back to other procedural rules.” Johnson v. State, 629 S.W.2d 731, 733 n. 16 (Tex.Crim.App.1981) (Judge Clinton dissenting).FN5
FN5. Contrast for example, Article 37.07, which governs the punishment charge in non-capital trials; Article 37.07 § 3(b) states that “the court shall give such additional written instructions as may be necessary and the order of procedure and the rules governing the conduct of the trial shall be the same as are applicable on the issue of guilt or innocence.” Article 37.071 has no comparable provision. The absence of provisions for additions to the instructions required by Article 37.071 or for objecting or preserving error to the instructions has necessitated citation by analogy to Article 36.14 in resolving some procedural questions arising under Article 37.071. See e.g., Miniel v. State, 831 S.W.2d 310, 318 (Tex.Crim.App.), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992) (preservation of error requirements).
Secondly, noting that the purpose and the structure, as prescribed in Article 37.071, of a punishment charge in a capital trial are unique and distinct from a guilt-innocence charge, we conclude that the rationale in Williams is applicable to the present case. Judge Onion, writing for the court in Williams, explained that to properly apply the law to the facts, it is necessary for a neutral party, the court, to guide the jury with an “application paragraph” which explained to the jury what conduct they must find to establish the alleged offense according to the legal definition of that offense. Williams, 547 S.W.2d at 20. This rationale is not applicable to the punishment phase of a capital murder trial. While a jury needs guidance to recognize evidence relevant to the legally defined elements of a particular offense, it can readily grasp the relevance of evidence to the special issues.
Thus, we conclude that for a punishment charge in a capital murder an application paragraph is neither necessary nor authorized. Of course, we do not foreclose the possibility that a situation may arise in which such instructions may be necessary. What we hold today is simply that appellant has not presented such a situation. Point of error ten is overruled.
Appellant avers, in point of error eleven, that the trial court reversibly erred in providing an incomplete Geesa instruction in its punishment charge. 820 S.W.2d at 162. Appellant alleges without explanation that the incomplete instruction on the meaning of beyond a reasonable doubt violated the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and the corresponding provisions of the Texas Constitution.
According to the record, the trial court instructed the jury on the first special issue as required by Article 37.071. The trial court added that the State must prove an affirmative answer beyond a reasonable doubt and explained
A “reasonable doubt” is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case. It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs ... Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.
Assuming for argument, that Geesa is applicable to the punishment charge of a capital trial, our own review of the record reveals that the instruction given was in substantial compliance with Geesa; it was appropriately amended to fit the punishment phase of a capital murder trial. In the instruction given, some of the paragraphs contained in the Geesa instruction were deleted, but these paragraphs were designed for the guilt-innocence charge and therefore inappropriate for a punishment charge under Article 37.071. FN6 Appellant's eleventh point of error is overruled.
FN6. Moreover, appellant concedes that this particular complaint was not raised at trial, but argues that it was egregious error. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).  In point of error twelve appellant alleges that the trial court erred in denying his motion for a new trial, “in that a bad decision by the appellant had such severe consequences that, in all fairness, trial counsel would not have acquiesced to the appellant's wishes if the legal consequences had been understood.” The gravamen of this argument is appellant's decision not to allow his counsel to present any “mitigating” evidence during his sentencing trial. His attorney testified as follows:
Mr. Morris and I have discussed presenting witnesses on behalf of Mr. Sonnier, those witnesses being various family members of Mr. Sonnier. We have advised Mr. Sonnier of our desire to present those witnesses on his behalf in his best interest, especially at this part of the trial, punishment phase of trial. Mr. Sonnier has advised us that he does not want us to put on any witnesses or put forth any evidence or testimony in regards to the defense at this stage of the trial.
Appellant does not allege any impediment to the voluntariness of this decision. He merely alleges that in retrospect, he realizes it was a mistake not to allow his counsel to present mitigating evidence. Appellant does not argue that actual mitigating evidence existed at the time of his trial; he merely asserts that he would on retrial “muster whatever Penry evidence might be available.”
Life is full of choices which in retrospect are regrettable. The law, however, does not recognize this truth as grounds for reversal of a criminal conviction. To the contrary, the basic principle underlying our criminal justice system is that each citizen is free to make choices, even if the choice is clearly a mistake. See Hubbard v. State, 739 S.W.2d 341, 345 (Tex.Crim.App.1987) (upholding appellant's right to self-representation, albeit questioning the wisdom of forgoing counsel's expertise in prosecuting an appeal). Neither the trial court nor appellant's attorney was free to override appellant's choice, and we have no authority to review appellant's choice; a defendant's knowing and free choices are owed absolute deference. His twelfth point of error is overruled.
In point of error thirteen, appellant argues that the trial court erred in overruling his objection to the State's reference during its closing argument at punishment to appellant's failure to produce witnesses to testify on appellant's behalf. Appellant does not specify to which part of the State's argument he objects, but we surmise that he objects to the following remarks:
[The defense] said if there were information about this defendant's criminal past you know I would have brought it. And, you know, certainly I am the only one with any burden of proof here, and they are in no way responsible to bring any evidence, but the other side of that coin is if there was a parade of character witnesses to say what a fine man this is, you know you would have heard those, too.
Appellant's complaint is meritless. It is within the bounds of permissible jury argument for the State to comment on an appellant's failure to call competent and material witnesses. Albiar v. State, 739 S.W.2d 360 (Tex.Crim.App.1987). Appellant concedes that under Albiar, the State's argument was proper, but he nevertheless, “recommends” that we overrule Albiar. We decline to overrule precedent without a compelling reason. Point of error thirteen is overruled.
The judgment of the trial court is affirmed. CLINTON, J., concurs in the result. BAIRD, J., concurs with note:
BAIRD, J., concurs. I concur in the disposition of the fifth point of error for the reasons stated in Green v. State, 912 S.W.2d 189 (Tex.Cr.App.1995) (Baird and Overstreet, JJ, concurring). I concur in the disposition of points of error seven and eight for reasons stated in Dinkins v. State, 894 S.W.2d 330, 341 (Tex.Cr.App.1995). I concur in the disposition of point of error nine for the reasons stated in Smith v. State, 898 S.W.2d 838, 855 (Tex.Cr.App.1995) (Baird, J., concurring). I concur in the disposition of point of error eleven for the reasons stated in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984). I join the remainder of the opinion.
Sonnier v. Quarterman, 476 F.3d 349 (5th Cir. 2007) (Habeas).
Background: Following affirmance of his capital murder conviction and sentence, 913 S.W.2d 511, and denial of his petition for state habeas relief, Texas death row inmate filed federal habeas petition. The United States District Court for the Southern District of Texas, David Hittner, J., granted the state's motion for summary judgment, dismissed the petition, and denied a certificate of appealability (COA) sua sponte. Inmate requested COA from appellate court.
Holdings: The Court of Appeals, Dennis, Circuit Judge, held that:
(1) trial counsel's failure to conduct in-depth investigation for mitigation evidence constituted deficient performance under Strickland;
(2) inmate failed to show that trial counsel's deficient performance in failing to investigate for mitigation evidence prejudiced inmate's death penalty defense;
(3) trial counsel's failure to present mitigation defense, at inmate's direction, did not constitute ineffective assistance of counsel;
(4) Simmons and its requirement that jury be informed of a defendant's ineligibility for parole was inapplicable to the Texas death penalty sentencing scheme at issue;
(5) the amended Texas capital sentencing system rationally narrowed the class of death-eligible defendants and, thus, did not violate the Eighth Amendment; and
(6) the amended Texas capital sentencing system did not violate the Fourteenth Amendment's equal protection clause. Request for COA denied.
DENNIS, Circuit Judge:
Petitioner Derrick Sonnier, a Texas death row inmate, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 with the United States District Court for the Southern District of Texas on June 4, 2004 and amended it on August 5, 2004. Respondent Doug DretkeFN1 filed a motion for summary judgment on July 14, 2005. The district court granted respondent's motion for summary judgment and denied Sonnier's petition for a writ of habeas corpus in a memorandum and order dated January 23, 2006. It additionally denied a Certificate of Appealability (COA) sua sponte. Sonnier now seeks a COA from this court.
FN1. On June 1, 2006, Nathaniel Quarterman succeeded Doug Dretke, the previously named respondent-appellee, as Director of the Correctional Institutions Division of the Texas Department of Criminal Justice. Quarterman is substituted as a party. Fed. R.App. P. 43(c)(2).
Sonnier was convicted of the capital murder of Melody Flowers and her son, Patrick Flowers, by a Texas jury.FN2 At sentencing, Sonnier's attorneys, pursuant to his wishes and instructions, did not present any mitigation evidence. Sonnier, on the record, confirmed that he had consistently instructed his attorneys not to present any mitigation evidence. Based upon the jury's answers to interrogatories under the 1991 Texas capital sentencing scheme, the trial court sentenced Sonnier to death.
FN2. Specifically, the jury found Sonnier guilty of intentionally and knowingly killing the two in the same criminal transaction in violation of Texas Penal Code § 1903. Sonnier's motion for new trial was denied, and his conviction and sentence were affirmed by the Texas Court of Criminal Appeals. See Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App.1995). Sonnier instituted state habeas proceedings in which his petition was denied. See Ex Parte Sonnier, No. 57,256-01 (Tex.Crim.App. Nov. 5, 2003)(unpublished).
Sonnier then filed his federal habeas petition in the district court. The district court granted the State's motion for summary judgment, dismissed Sonnier's petition in its entirety, and denied a COA. Sonnier now requests a COA from this court, claiming that: (1) his trial counsel was ineffective for (a) failing to investigate for mitigation evidence and for (b) failing to present mitigating evidence at the punishment phase of his trial; (2) he was constitutionally entitled, under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), to inform the jury that, if sentenced to life imprisonment, rather than death, he would not be eligible for parole for 35 years; and (3) Texas Code of Criminal Procedure article 37.071, as amended effective September 1, 1991, is unconstitutional.
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We cannot grant a COA to Sonnier. Sonnier has failed to demonstrate that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further, as required by the United States Supreme Court's interpretation of 28 U.S.C. § 2253(c)(2) in Miller-El v. Cockrell.
In sum, we reject each of Sonnier's arguments. As to his ineffective assistance of counsel claims, we recognize that counsel's failure to conduct an in-depth investigation for mitigation evidence constitutes deficient performance under Strickland's requisite first prong. Nevertheless, we find that Sonnier did not carry his burden of showing that his attorneys' deficient performance prejudiced his death penalty defense under the second requirement of Strickland. As for his Simmons claim, following United States and Fifth Circuit precedent, we hold that Simmons is inapplicable to the Texas death penalty sentencing scheme at issue in the instant case. Finally, the Texas death penalty sentencing scheme does not violate either the Eighth or Fourteenth Amendment. It sufficiently narrows the death-eligible class and does not deny Sonnier equal protection the laws.
For these reasons, we deny Sonnier's request for a COA in its entirety.