1995 WL 17065817 (Tex.Crim.App.) (Appellate Brief) Court of Criminal Appeals of Texas. Kia Levoy JOHNSON, Appellant, v. The State of Texas, Appellee. No. 72061. November 14, 1995. No. 94CR0502 On Appeal from the 226th District Court Bexar County, Texas Cause Number 94-CR-0502 William T. Reece, Jr., TBN: 16673000, 107 Woodward, San Antonio, Texas 78204, (210) 225-7555, Attorney for Appellant. Names of Parties. Appellant: Kia Levoy Johnson. Appellee: The State of Texas.
*1 POINT OF ERROR NUMBER ONE The evidence presented by the State of Texas was not sufficient to prove the offense of Capital Murder. (page 4) POINT OF ERROR NUMBER TWO The first arrest of the appellant, for failure to I.D. was unlawful, therefore tainting the second arrest for Capital Murder, while the appellant was in custody for the initial arrest. (page 17) POINT OF ERROR NUMBER THREE The admission of testimony concerning the clothes the appellant was wearing when arrested was in violation of a Motion in Limine and should be considered reversible error. (page 23) POINT OF ERROR NUMBER FOUR The Trial Court erred in admitting evidence at sentencing of unadjudicated offenses which allegedly occurred during the appellant’s time in jail, awaiting trial and during previous jail or prison sentences, because this evidence was more prejudicial than probative. (page 32) POINT OF ERROR NUMBER FIVE The imposition of the Death Penalty is unconstitutional and inhumane pursuant to the United States Constitution, Eighth and Fourteenth Amendments (page 34) *2 STATEMENT OF FACTS On the 5th day of February 1995, the State of Texas v. Kia Lavoy Johnson, Cause Number 94-CR-0502 was called. The State of Texas appeared by her Assistant Criminal District Attorneys, Michael Cohen and Catherine Babbitt. The defendant appeared in person and by counsel, William T. Reece, Jr. and Baltizar Serna, Jr.. Having been duly arraigned, the defendant entered a plea of not guilty to the offense charged in the indictment. The trial was before a Jury who, after hearing the evidence submitted, the Charge of the Court, and the argument of Counsel thereon, rendered a verdict of guilty. Afterwards, in accordance with the law, a separate sentencing proceeding was conducted. Evidence was submitted, the jury was charged by the Court and on the 10th day of February, 1994, the jury answered Issue No. 1: “Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Kia Levoy Johnson, would commit criminal acts of violence that would constitute a continuing threat to society?” In the affirmative. The jury answered Issue No. 2: “State whether, taking into consideration of the evidence, including the circumstances of the offense, the Defendant’s character and background and the personal moral culpability of the Defendant, there is sufficient mitigating circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.” In the negative. It was then considered, ordered and adjudged by the Court that the defendant was guilty of the offense of Capital Murder as found by the verdict of the jury, and that the defendant committed the offense on the *3 29th day of October, 1994, as charged in the indictment, and that he be punished in accordance with the jury’s verdict and as required by the Statutes of the State of Texas by DEATH. *4 POINT OF ERROR NUMBER ONE The evidence presented by the State of Texas was not sufficient to prove the offense of Capital Murder. ARGUMENT AND AUTHORITIES The standard of review for sufficiency of the evidence in a criminal case is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert. denied, 502 U.S. 870 (1991). The standard is the same whether we are reviewing the sufficiency of circumstantial or direct evidence. See Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Every fact need not point directly and independently to the defendant’s guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 910 (1982). A conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances. Id.; Arevalo v. State, 835 S.W.2d 701, 703 (Tex. App.-Houston [14th Dist.] 1992, no pet.). The issue on appeal is not whether the appellate court believes the prosecution’s evidence, nor whether it believes the defense’s evidence outweighs the state’s evidence. Reed v. State, 769 S.W.2d 323, 330 (Tex.App.--San Antonio 1989, pet. ref’d). If there is evidence which establishes guilt beyond a reasonable doubt, and if the trier of fact believes this evidence, the appellate court is not in a position to reverse the judgment on sufficiency of the evidence grounds. Id. *5 In this case the only evidence put forth by the State that the appellant committed the offense of murder was a video recording made at the store in which the offense occurred. (s.f., vol. IV, p. 149). The corroborating evidence brought by the State that the individual on the video tape was actually the appellant was unconvincing at the least, and unbelievable at the most. (s.f., vol. XVI, p. 111-183). The testimony of Mr. Thompson was inconsistent and unreliable. Specifically, during the pre-trial hearings Mr. Thompson testified: (s.f., vol. IV, p. 153, 1. 4-25, pre-trial) Questions by Mr. Reece Q. Let me ask you this, you said that you saw Mr. Johnson on a T.V. newscast, is that right? A. Yes, sir. Q. Are you absolutely sure about that? A. Yes, sir, I am. Q. Okay. I am going to show you your statement where you testified that you saw the video of Mr. Johnson for the first time when the police officer played it for you. Were you lying here or were you lying under oath a while ago, sir? A. No, sir. I wasn’t lying and what I am saying is on this paper here, I don’t know what is stated on it, but I saw the video from the newscast. That was the first time. Q. Sir, right here in your statement you say, “I had not seen any video on the news about this incident until Detective Lopez *6 showed me the video he brought over to my home.” Do you recall that, sir? A. Let me think a minute. Questions by Mr. Reece (s.f., vol. IV, p. 154, 1. 14 - p. 155, 1. 13, pre-trial) Q. Okay. A. I saw the news video -- I didn’t actually see it on T.V. I just saw, what do you call it, a little quick -- a quick -- I guess you call it headlines, a quick flash that when it do come on it’s going to sort of be the main thing for the day. Yes, I did see it. I saw it there and I seen -- Q. But you did say in your statement that, quote, “I had not seen any video on the news about this incident until Detective Lopez showed me -” A. I did not. Q. “-- the video”? A. I only seen the little flash. I know ya’ll -- often in law enforcement -- I know what I am speaking of. I just don’t know the proper word for it, but you know, after they give you -- a preview, that is what I’m saying. I know what I seen. Q. I am not sure if -- you didn’t see anything on television, is that correct? A. Yes, I did. Q. So this statement you made was not correct, the police *7 officer put words in your mouth? A. The police officer did not put anything in my mouth. Questions by Mr. Reece (s.f., vol. IV, p. 156, 1. 13 - p. 158, 1. 18) Q. What kind of pants was Kia Johnson wearing in the video? A. I didn’t pay attention to his pants, but he had on the same shoes that he had on when he came to my house. Q. Okay. So you didn’t pay attention to the pants when the -- A. No, sir, I did not. Q. You didn’t pay attention either when the officer showed you the video or when you later saw it? A. No, sir. What I saw is what -- the same showes he had on, which was tennis. When he came over to my house, him and I guess a friend, I don’t know, I never seen the other person. And they was -- well, he said he was, you know, talking noise as I call it and I advised him again that he wasn’t welcome at my house. Q. You don’t know if the pants that he was wearing in the video was the same type of pants that you had seen him wear in the past, is that correct? A. Sir, I couldn’t answer that because I didn’t pay any attention to his pants. His shoes, I do know. Q. All right. Right here in the statement where you stated *8 that, “After he got inside I noticed the pants the individual had on were pants what I had personally seen Kia wear in the past.” Were you I guess mistaken or lying or something in the statement you made? A. No, sir. I said shoes. I didn’t say anything about pants. Q. So the police officer just typed something else in there? A. I am not saying that either, sir. Q. This says, “After he got inside I noticed the pants the individual had on were pants that I had personally seen Kia wear in the past.” A. Maybe they made a misprint or something, but I specifically said shoes. Q. So you definitely never said anything about the pants, right? A. I don’t think so. Q. Okay. All right. So now, his shoes, what, was he wearing some kind of white tennis shoes. A. No, sir. They was same as -- either dark blue or black and white. Q. Which was it? A. They had to be most likely, that color would be black and white. Q. Okay. Is there anything unusual or distinctive about that type of shoes that -- *9 A. Well, the design on it, the white part, had some little curve like. That is the best I can answer you. Q. Have you ever seen any other young men wearing shoes like that? A. Yes. Statement by the Court out of the presence of the jury (s.f., vol. XVI, p. 135, 1. 15 - 17) ... I am still unclear on his testimony despite having heard it on two occasions. I am not sure exactly what he’s telling me. Questions by Mr. Reece (s.f., vol. XVI, p. 154, 1. 11 - 25) Q. Okay. The firs thing is -- are you telling us now that you did not see anything today? Are you telling us today when the first time you saw anything on television about Kia Johnson -- I thought I understood you today to say that you saw something after the officer showed up or was it before? A. I am not sure which way they came. What I am saying is that I saw both from the officers and the news. Q. How many officers -- did the officers come on more than one occasion to the house of did they just come once? A. To show a film? It’s been a lot of times that some officer came by.” Questions by Mr. Reece (s.f., vol. XVI, p. 155, 1. 14 - p. 158, 1. 10 *10 A. I am saying that thee day the tape was brought out, I saw the tape the same day as I seen it on T.V. Q. Okay. Do you recall -- now you are saying you don’t know when you saw it? A. I just don’t know what order. I wasn’t keeping up with what order. But I am telling you I seen it the same day, sir. Q. Well this -- so you are saying now you don’t know on 2-795 as far as when you saw the tape, you don’t know, is that right? A. No, sir. I am talking about 10-29-93. Q. You don’t know -- today you are saying you don’t know whether you saw it first, is that right? A. Today I am saying I don’t know which order that I seen it, was it from the police first or from the news first. Q. Okay. Well, your memory certainly -- even though you are a smart man, you would remember things closer to the time it happened than some years later? A. Pretty much so. Q. Okay. So back on 10-29-93, do you recall making a sworn statement under oath to the effect that you hadn’t seen any video in the news until Detective Lopez showed you the video? A. Okay. Then this is -- this is the order it was then. Q. All right. I am not trying to confuse -- A. No. *11 Q. I’m -- A. You are not confusing me at all, sir. Q. I am not crossing you out here, right? A. No, sir. Q. Okay. So -- A. If I made that statement that that was the first video I seen, then that is the first video I seen. Q. Okay. And what this statement says is that you talked to Lopez first and then saw the T.V. Is that right? A. Okay. I have no objection to that. Q. Are you sure? A. I am positively sure. If I put it in that statement, sir, then I know. Q. But the problem is you didn’t type the statement, the police did, is that right? A. Yes, but if you are saying the video is what we are talking about, we are trying to straighten out the video -- which order came first, right? Q. Yes, sir. A. Okay. Then I must have seen the one that the detective had first. Q. You are sure of that? A. I am positively sure because I know I seen the news later. Q. Okay. And do you recall back on November 22nd, 1994, in *12 this transcription I asked you the question, but did you say in your statement that, and I quote -- Ms. Babbitt: Counsel, refer to the -- pardon me, Counsel. If you would be kind enough to refer us to a page. Mr. Reece: Sure. Page 134. Q. Did you say in there in response to my question, but did you say in your statement that, quote, “I had not seen any video on the news about this incident until Detective Lopez showed me”? And you recall answering “I did not,” do you recall that? A. You are saying I said I didn’t see any video until Mr. Lopez showed me? Q. Well again -- A. That is what I am saying. Q. On November 22nd of 1994, I said, “Did you say in your statement ‘I have not seen any video on the news bout this incident until Detective Lopez showed me?’ ” Answer: “I did not”? A. Right. I would have to go back to 10-29 and that would make it so, sir. Q. Okay. On 11-22-94 you denied making the statement until I showed it to you. Do you recall that? A. Making what statement? Q. Does this say right here -- did you say in your statement and I quote, “I had not seen any video int he news about this *13 incident until Detective Lopez --” A. That is what I’m saying. Q. And back then you said, “I did not,” is that right? Questions by Mr. Reece (s.f. Vol. XVI, p. 161, 1. 4 - p. 163, 1. 22) Q. All right. Well, let’s don’t beat a dead horse to death. Let’s go to the next section and talk about some pants. Okay. You just told this jury that you saw what type of pants that Kia Johnson was wearing. You had seen him wear it before, is that correct? A. Yes. Q. So on 2-7-95 you knew about the pants, is that right? A. On 2-- Q. You saw them before? A. I know what you are getting at because I was telling on 11-22, I said I wasn’t quite sure about the pants of Mr. Johnson. Is that what your are after, sir? Q. No. What you are saying today is you are sure about the pants or you are not sure about the pants? A. I am sure about what I have seen. Q. You know that you saw he had some pants? A. I know what he had on, yes, I do. Q. Okay. I am going to show you Page 156, the transcription on 11-22-94. *14 A. It says I wasn’t sure. Q. No, sir. i said what kind of pants was Kia Johnson wearing in the video and how did you answer that, sir? You can read that for the jury. A. This right here? Q. Yes, sir. A. “I didn’t pay attention to his pants but he had on the same shoes that he had on when he came by my house.” Q. All right. Then the next question, I said, “Okay. So you didn’t pay attention tot the pants when -” how did you answer? A. I said, “I did not.” Q. “No, sir, I did not. A. That is what I’m saying, I did not. Q. Then I asked you to make sure, I said, “You didn’t pay attention either when the officer showed you the video or when you later saw it?” And how did you answer? A. I said, “No, sir.” Q. Okay. A. Wait a minute. Let me see the other part of that. Q. Okay. So in your statement that the officer -- and just so the jury understands, you didn’t type this statement? You don’t type, is that right? A. That is correct. *15 Q. The police officer typed it up? A. I don’t know who typed it up. Q. You didn’t type it up? A. That is right. Q. All right. You know that in your statement you claim to know the type of pants that he wore, is that correct? A. Yes, I do know the type of pants he had on, sir. Q. This is what you said on 10-29-93, that you know, is that right? A. Yes. Q. Okay. I wasn’t present when you made this statement. No lawyer was present, is that right? So the first time you told your story in court on November 22nd, 1994, you said you didn’t notice the pants? A. Right. I wasn’t sure about the pants. You might have on there “I don’t know” or whatever, I was -- Q. This say, “I didn’t pay any attention to the pants.” Although the Court of Appeals is not to sit as a thirteenth juror, they do have the right to review the evidence and determine if it is sufficient to support the verdict. The Court should not be of the opinion that because the jury found someone guilty, the evidence was presented to support that finding. In this case there was no evidence presented that the appellant caused the death, and certainly no evidence that the death was intended. It is understood that the Court of Appeals will rarely overturn a verdict *16 based upon sufficiency. Understanding that, it is not the intent of the case law concerning sufficiency, to mandate that a case never be overturned on the question of sufficiency. In this case there clearly was no evidence to show that the appellant caused, or intended to cause the death of Mr. Rains. The motion for an instructed verdict was made by the attorney for the appellant, Mr. Reece, in which he explained to the court that the state failed to prove that the appellant caused the death of Mr. Rains. The state offered no argument to this contention. (s.f., vol. XVII, p. 81, 1. 10 - p. 82, 1. 2). In light of these facts the appellant would ask the court to reverse the judgment of the trial court based on insufficient evidence. *17 POINT OF ERROR NUMBER TWO The first arrest of the appellant, for failure to I.D. was unlawful, therefore tainting the second arrest for Capital Murder, while the appellant was in custody for the initial arrest. ARGUMENT AND AUTHORITIES There was plainly no probable cause to arrest Kia Johnson in the first place. Apart from the fact that the officers who made the arrest admitted that they had no probable cause prior to Mr. Johnson’s failure to identify himself, the facts of the case speak for themselves. The only information that the detectives were relying on for the arrest was a tip from a “confidential informant,” whose reliability the State did not even attempt to establish at the hearing. This is not enough to meet even the minimal burden of probable cause. The officer testified that Mr. Johnson was not lawfully arrested or lawfully detained when he requested his identification. To be guilty of the offense of Failure to Identify, one of these situations are required. Texas Penal Code, Section 38.02. The officer stated: Questions by Mr. Reece (s.f., vol. IV, p. 105, 1. 22 - Q. Did you observe him commit any offense for which you were attempting to lawfully arrest him, yes or no? A. No. Q. Now, you have indicated or you seem to want to indicate that you wanted to lawfully detain him, is that correct? A. Yes, sir. *18 Q. Lawfully detain him for what? A. For an investigation that he was selling narcotics. In other words, I approached him. I wanted to see who he was and what he was doing there and to see if he had any narcotics on him. Q. But you didn’t see any -- you didn’t see any narcotics being sold during the period that you observed him, is that correct? A. No. From about a block away there is no way you can see it. It was nighttime. I mean, I would have had to have been right next to him before I could have seen the actual transfer of the narcotics. Q. So if there was something that had occurred, this is based upon information you had received earlier, is that correct? A. Yes, sir. Q. And who was it that supplied you that information? A. It was an informant, a confidential informant. Q. And what was the name of the confidential informant? Mr. Cohen: Objection, Your Honor. We claim the privilege as allowed under Article 5 of the Rules of Evidence. Mr. Reece: Your Honor, at this point he’s indicated he didn’t observe any unlawful activity that had occurred, so -- we have a motion on file to reveal the informant who now appears to be a witness since he cannot talk about any illegal *19 activity observed and there is nothing to indicate that. I think, you know, the confidential informant has been upgraded to being present at the scene of the crime. Mr. Cohen: The crime is capital murder, not delivery of cocaine. This informant is not an informant to the capital murder. Mr. Reece: I will -- he got here by being arrested for failure to I.D. Additionally the State did not establish exigent circumstances in the first arrest of Mr. Johnson. Absent probable cause and exigent circumstances, a warrantless arrest is illegal. Michigan v. Summers, 452 U.S. 692, 700 (1981); Payton v. New York, 445 U.S. 573, 576, 590 (1980); Tx.C.Cr.P. Art. 15; Bell v. State, 707 S.W.2d 52 (Tx.Cr.App.1986). The fruit of the poisonous tree doctrine forbids the use of evidence obtained as a result of an illegal arrest. The Fourth Amendment to the United States Constitution applied to the states through the Fourteenth Amendment and Article I, Section 9 of the Texas Constitution forbid unreasonable searches and seizures. Appellant contends that his detention and transportation to the police R.O.P. office constituted an unreasonable seizure and that the clothes, or a description of those clothes, as the fruit of the unreasonable, and therefore illegal, seizure was inadmissible as evidence against him. See Texas Code of Criminal Procedure, article 38.23; Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); *20 Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963). The fruit of the poisonous tree doctrine explained at length in Wong Sun serves to exclude not only the direct products, but also the indirect products of Fourth Amendment violations. Armstrong v. State, 550 S.W.2d 25, 31 (Tex.Crim.App. 1977). Evidence is not classified as a fruit requiring exclusion, however, merely because it would not have been discovered “but for” the primary invasion. Armstrong, 550 S.W.2d at 31. The more apt question to ask is whether, granting the establishment of the primary illegality, the evidence t which objection is made has been come at by exploitation of the primary taint. Armstrong, 550 S.W.2d at 31; Starkey v. State, 704 S.W.2d 805, 810 (Tex.App. --Dallas 1985, pet. ref’d) (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417). Three doctrines, which have been labeled independent source, attenuated connection and inevitable discovery have been recognized as exceptions to the fruit of the poisonous tree doctrine and justify admission of evidence even though it is derived from information obtained in violation of the Fourth Amendment. See Garza v. State, 771 S.W.2d 549, 550 n. 1 (Tex.Crim.App. 1989); Vanderbilt v. State, 629 S.W.2d 709, 722 (Tex.Crim.App. 1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). Under the independent source exception, the unconstitutionally obtained evidence may be admitted if the prosecution can establish that it was discovered by means independent of the illegality. See Silverthorne Lumber Co. V. United States, 251 U.S. 385, 391-92, 40 S.Ct. 182, 182-83, 64 L.Ed. 319 (1920); Autry v. State, 626 S.W.2d 758, 764 (Tex.Crim.App. 1982). The attenuation doctrine provides that the tainted *21 evidence may be admitted if the prosecution can show that the connection between the initial illegality and the evidence has become so attenuated so as to dissipate the taint. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939); Wicker v. State, 667 S.W.2d 137, 141-42 (Tex.Crim.App. 1984). Under the inevitable discovery rule, evidence initially discovered in an unconstitutional manner may be received if that same evidence would have been inevitably obtained lawfully. See Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984); Dickey v. State, 716 S.W.2d 499, 505 (Tex.Crim.App. 1986). In the present case there was no investigation apart from the detention of the appellant under which the evidence complained of would have come from an independent source or have been inevitably discovered. The questionable Balcones Heights warrant, under which appellant was arrested would have not been served on appellant when and where appellant was had he not already been in custody. See Reed v. State, 809 S.W.2d 940, 945 n. 1 (Tex.App. -- Dallas, 1991). In Autry, Starkey and Matienza, the court took notice of three factors which have been identified as bearing on the extent of attenuation. These factors are the temporal proximity of the illegal arrest to the discovery of the evidence, and the purpose and flagrancy of the official misconduct. See Autry, 626 S.W.2d at 764; Starkey, 704 S.W.2d at 810; Matienza, 699 S.W.2d at 628. The Starkey court also noted the twin policies of deterrence and judicial integrity underlying the exclusionary rule. When there is a close connection between the illegal arrest and the discovered evidence, as there *22 was in the present case, not only is exclusion of the evidence more likely to deter similar police conduct in the future, but also use of the evidence is more likely to compromise the integrity of the courts. See Starkey, 704 S.W.2d at 810 (citing Dunaway, 442 U.S. at 219, 99 S.Ct. at 2260). Pursuant to the case law described above. any fruits from this arrest should therefore be inadmissible. *23 POINT OF ERROR NUMBER THREE The admission of testimony concerning the clothes the appellant was wearing when arrested was in violation of a Motion in Limine and should be considered reversible error. ARGUMENT AND AUTHORITIES The questionable arrest warrant obtained by the Balcones Heights Police officer cannot cure the fatal errors resulting from Mr. Johnson’s arrest for failure to identify (discussed in Point of Error Number Three). A warrant obtained subsequent to an illegal arrest, while the defendant is held in custody, cannot nullify the illegal arrest. If this were the case the legislature would not have to promulgate rules concerning searches or arrests conducted without a warrant. Police officers could simply take persons into custody without the need for probable cause, obtain a warrant, and all would be right with the world. Instead, the legislature, and the courts of this state, realize that certain requirements must be met when arresting an individual and searching him without the benefit of a warrant. These requirements were not met in the case of Mr. Johnson, therefore the search and seizure of evidence subsequent to his illegal arrest was suppressed. The testimony concerning a description of these items should have been also. A questionable arrest warrant, obtained while he was detained, in no way changes this fact. The Court, in pretrial motions, held that the State would not be allowed to enter the physical evidence obtained from Mr. Johnson as a result of this arrest (s.f., vol. IV, p. 166, 1. 15 -20). During the testimony of officer DeLaGarza the state questioned: *24 Questions by Mr. Cohen (s.f., vol. XVI, p. 212, 1. 14 - p. 214, 1. 12) Q. Did you observe what he was wearing at the R.O.P. office? A. Yes, sir, I did. Mr. Reece: Judge, we need to approach the bench. Mr. Reece: You probably need to excuse the jury. Mr. Cohen: Why? Mr. Reece: We have a motion to suppress what the Defendant was wearing as a result of an arrest which was questionable. The court ordered the State representative that there would be no mention of what the Defendant was wearing. Mr. Cohen: No. Mr. Reece: -- at the time of the arrest, no mention of the clothing. Mr. Cohen: That is not your order to not introduce physical evidence. Their motion to suppress was for the physical evidence of the clothing. We are merely going to have testimony as to what he observed the Defendant wearing. That is different than what there motion -- Mr. Reece: No -- Mr. Cohen: Can I finish? Mr. Reece: Sure. Mr. Cohen: Different than what your ruling addressed or what we agreed not to do. *25 The Court: What are you going to elicit as a description? Mr. Cohen: What was he wearing and “Had you ever seen him wearing those clothes before?” He told me, “Yes, I saw him wearing that same clothing on the video tape.” Mr. Reece: That was previously covered, Your Honor. I can show you in the record what Mr. Cohen indicated. Also I might add we had an agreement this morning to approach the bench prior to -- Mr. Cohen: My agreement was not to introduce the physical evidence and if I planned to do that, I would approach the bench as has been my agreement. There was no ruling over and above not mentioning what he was wearing. The Court: I don’t recall any ruling being made, but I will excuse the jury and we will hear it. The jury was returned to the court room and the following questioning took place: Questions by Mr. Cohen of Officer DeLaGarza (s.f., vol. XVI, p. 264, 1. 8 - Q. Was there anything about him that caused you to recognize him other than his facial features? A. As I walked into the office where they had the Defendant, right away I was struck with the clothing he was wearing. Q. What struck you about the clothing? A. The clothing was identical to that that was on the video *26 tape. Mr. Reece: I object again, Your Honor. That other matter is not in evidence at this point. I thought the Court made it clear to Counsel what the ruling was. The Court: Ladies and gentlemen, you are instructed to disregard the last question and comment by the witness. Mr. Reece: And I move for a mistrial based ont he specific violation of the Court’s order by Counsel. The Court: I will overrule that request. The Court’s order to suppress the physical evidence obtained from Mr. Johnson was violated by Counsel for the State. This was clearly an attempt to circumvent the court’s ruling and the rules of search and seizure. The testimony concerning a description of that physical evidence was as much a fruit of the illegal arrest as the physical evidence would have been. The Court’s admonishment to the jury to disregard this testimony cannot cure the harm it caused. The jury was allowed to hear evidence of the fruits of an illegal arrest and an illegal search and seizure. After the video tape was entered into evidence by the state, the following testimony was elicited from Officer DeLaGarza: Questions by Mr. Cohen (s.f., vol. XVI, p. 282, 1. 21 - Q. You testified that when you saw Mr. Johnson, the Defendant, at the R.O.P. office, that not only did you recognize his facial features but you indicated you recognized something *27 else about him that looked identical on the video tape? A. The moment I walked in the room I was elated to see that he had on the same coat that I saw in the surveillance tape, the same color. When I had him stand up so I could pat him down, as I advised him he was under arrest, with the arrest warrant in hand, as I was patting him down, I remembered looking at the video that I had seen a number of times in the morning, even the back portion of his beige and darker brown coat where the hood is in the rear, the flip -- it had a flip crease on it. I had the same crease in my video. I was convinced I had the same man. Thus I took his clothing and his shoes for evidence after he was advised -- Q. Let’s not go into those matters. A. Okay. Q. Let’s just -- all we can go into is your observations. Mr. Reece: We need to approach the bench. Mr. Reece: Mr. Serna informed me it appears that Mr. Cohen has violated what the Court had ruled. Mr. Serna: I believe Mr. Cohen was -- he’s making a comparison to the clothes and as to the video tape. He was not allowed to do that. Mr. Cohen: Only because it hadn’t been introduced. It’s introduced now I believe. Mr. Serna: He -- *28 The Court: Go ahead. Mr. Serna: Your Honor, he did in fact mention the fact he took his clothes from he Defendant when you specifically told Mr. Cohen those matters weren’t supposed to be gone into. You asked that. We object to it. We would ask that you instruct the jury to disregard that and we would like to ask for -- move for a mistrial at this time. Mr. Cohen: it was not responsive to my question. I certainly did not intentionally ever violate an order of this Court. I asked him, you know, his observations. He volunteered the part about taking the clothing. So I don’t disagree with Mr. Serna. The Court: I will sustain the objection. I will instruct them and I will deny the mistrial. Their deal was in comparison to it, and item that was not in evidence. It is now in evidence. Mr. Cohen: Yes, sir. The legal standard employed when reviewing the trial court’s ruling on a motion to suppress evidence is whether the trial court abused its discretion. Williams v. State, 535 S.W.2d 637, 639-640 (Tex.Crim.App.1976); State v. Comeaux, 786 S.W.2d 480, 482 (Tex.App.-- 1990), aff’d, 818 S.W.2d 46 (Tex.Crim.App.1991). The reasons behind the trial court’s judgment will not create reversible error, provided the trial judge does not abuse his discretion. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.1980) *29 (refusing the defendant discovery of tape recordings involving defendant is subject to a standard of review based on abuse of discretion). Questions regarding the admission or exclusion of evidence are within the trial court’s discretion, Jackson v. State, 575 S.W.2d 567, 570 (Tex.Crim.App.1979), and the trial court’s ruling is not subject to reversal unless a clear abuse of discretion is shown. Erdman v. State, 796 S.W.2d 243 (Tex.App.-Hous. (14 Dist.), 1990); Werner v. State, 711 S.W.2d 639, 643 (Tex.Crim.App.1986). It is clear that when a trial judge’s decision is based on any theory of law applicable to the case, that decision will be sustained even where the judge has given a wrong or insufficient reason. Romero v. State, 800 S.W.2d 539 (Tex.Crim.App.1990); State v. Gonzales, 850 S.W.2d 672 (Tex.App.-San Antonio, 1993). At trial, the determination of admissibility of evidence is within the sound discretion of the trial court, and such determination will not be reversed unless a clear abuse of discretion is shown by the complainant. State v. Vogel, 852 S.W.2d 567 (Tex.App.-Dallas, 1992). In Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990), the court articulated a standard for determining when a trial court abuses its discretion. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not *30 demonstrate that an abuse of discretion has occurred. Thus, judicial rulings will be affirmed if the trial court follows the appropriate analysis and balancing factors, though the appellate court might disagree with the weight given to those individual factors. In short, a trial court judge is given a “limited right to be wrong,” so long as the result is not reached in an arbitrary or capricious manner. State v. Howard, 838 S.W.2d 926 (Tex.App.-Austin, 1992). The court held in reviewing a ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court’s ruling. Clark v. State, 548 S.W.2d at 889. In effect, appellant is asking this court to weigh the conflicting evidence submitted to the trial court, to accept his version of the evidence, and to substitute the appellate court’s judgment for the trial court’s. Absent a clear abuse of discretion, a trial court’s ruling on the admissibility of evidence should not be disturbed. Townsend v. State, 813 S.W.2d 181 (Tex.App.-Hous. (14 Dist.), 1991); Sosa v. State, 769 S.W.2d 909, 915 (Tex.App.--Dallas 1989, no pet.). In the present case the trial court clearly abused its discretion. The actual physical evidence obtained from Mr. Johnson as the result of an illegal arrest was suppressed, but a description of those items was allowed to be presented to the jury. There is no reasoning, or balancing test, which can uphold this decision. At a suppression hearing, the trial judge is the sole factfinder and may accept or reject any or all of the witness’ testimony. Romero v. State, 800 S.W.2d 539, 534 (Tex.Crim.App.1990). This Court must view the evidence in the light most favorable to the trial court’s ruling. *31 Romero, 800 S.W.2d at 543. Absent a showing of abuse of discretion, the trial court’s finding should not be disturbed. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App. 1985). When a defendant seeks to suppress evidence because of an illegal search that violates the federal and state constitutions, the defendant bears the initial burden to rebut the presumption of proper police conduct. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). The defendant meets the burden by proving that the police seized him or performed a search without a warrant. Russell, 717 S.W.2d at 9. Once the defendant establishes (1) that a search or seizure occurred and (2) that no warrant was obtained, the burden shifts to the State to produce either evidence of a warrant or to prove the reasonableness of the search or seizure pursuant to one of the recognized exceptions to the warrant requirement. Id. The attorney for the defendant questioned the police officer concerning the first arrest of Mr. Johnson and ascertained that it was not incident to a warrant, therefore, the burden rested upon the State to prove the existence of a valid exception, which they failed to do. The physical evidence was suppressed, and any attempt to have a witness describe this evidence should have been prevented by the trial court. The failure to do so was an abuse of discretion. *32 POINT OF ERROR NUMBER FOUR The Trial Court erred in admitting evidence at sentencing of unadjudicated offenses which allegedly occurred during the appellant’s time in jail, awaiting trial and during previous jail or prison sentences, because this evidence was more prejudicial than probative. ARGUMENT AND AUTHORITIES Because the offenses alleged to have occurred during the appellant’s time in jail, awaiting trial occurred in their entirety between October 30, 1994 and February 10, 1995 (s.f., vol. XVIII, p. 168,1. 8 -14; p. 207, 1. 14 - p. 208, 1. 21) the controlling law was Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Crim.App. 1992), which held that, “even if deemed relevant to sentencing by the trial Court, evidence is not admissible at punishment, unless (1) it is permitted by the Rules of Evidence, and (2) if the evidence sought to be admitted is evidence of an extraneous offense, it satisfies article 37.07(3)(a)’s definition of prior criminal record.” That definition provided: ...The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged... Tx.C.Cr.Pr. Art. 37.07(3)(a) Additionally, Article 37.071 does not expand this definition, in fact it could even be construed as limiting it. That article states: *33 ...In the proceeding, evidence may be presented by the state and the defendant of the defendant’s counsel as to any matter that the court deems relevant to sentence, including evidence of the defendant’s background or character or the circumstances of the offense that mitigates against the imposition of the death penalty. Since the extraneous offenses admitted in this case were not final convictions, nor probated or suspended sentences, nor were they material to the offense charged (misconduct during confinement in jail), nor were they relevant to the defendant’s background or character, they did not fit the definition of prior criminal record required by Grunsfeld, and thus were inadmissible. Appellant anticipates that the State will argue that the admission of these offenses, if improper, was harmless. However, the effect of these extraneous offenses on the jury’s deliberations in incalculable, and could not have been anything but detrimental to Mr. Johnson’s case. Any jury is bound to consider a “repeat offender” or “institutional misfit” to be a threat to society. Particularly given the repeated use of this evidence by the prosecution during argument on the sentencing phase, it is impossible to conclude beyond a reasonable doubt that these offenses played no part in the jury’s decision to assess the death penalty. See Anderson v. State, 817 S.W.2d 69 (Tex.Crim.App. 1991). The case should be reversed and remanded for new sentencing on this ground. *34 POINT OF ERROR NUMBER FIVE The imposition of the Death Penalty is unconstitutional and inhumane pursuant to the United States Constitution, 8th Amendment, and 14th Amendments. ARGUMENT AND AUTHORITIES The attorney for the appellant relies upon Justice Blackmun for the Constitutional argument concerning this matter. Justice Blackmun’s dissent in Callins v. Collins, 114 S.Ct. 1127, 127 L.Ed.2d 435, 62 USLW 3546, clearly explains the problems existing with the imposition of the death penalty, particularly in the South, and specifically in Texas. Justice Blackmun argument would be difficult to improve upon, and is, therefore, worth repeating. The meaning of his words carries weight in every case dealing with the death penalty, but, they are particularly significant in the appellant’s. “...The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel--someone who is inspired by the awareness that a less-than-vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights-- even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State. But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable *35 consistency, or not at all, see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. This is not to say that the problems with the death penalty today are identical to those that were present 20 years ago. Rather, the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form. Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness--individualized sentencing. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). It is tempting, when faced with conflicting constitutional commands, to sacrifice one for the other or to assume that an acceptable balance between them already has been struck. In the context of the death penalty, however, such jurisprudential maneuvers are wholly inappropriate. The death penalty must be imposed “fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982). To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that “degree of respect due the uniqueness of the individual.” Lockett v. Ohio, 438 U.S., at 605, 98 S.Ct., at 2964 (plurality opinion). That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice. Finally, because human error is inevitable, and because our criminal justice system is less than perfect, searching appellate review of death sentences and their underlying convictions is a prerequisite to a constitutional death penalty scheme. On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow. Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only *36 from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313, n. 37, 107 S.Ct. 1756, 1778, n. 37, 95 L.Ed.2d 262 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States. From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored--indeed, I have struggled-- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question--does the system accurately and consistently determine which defendants “deserve” to die?--cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e.g., Arave v. Creech, --- U.S. ----, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993), relevant mitigating evidence to be disregarded, see, e.g., Johnson v. Texas, --- U.S. ----, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), and vital judicial review to be blocked, see, e.g., Coleman v. Thompson, 501 U.S. ----, 112 S.Ct. 1845, 119 L.Ed.2d 1 (1992). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. In 1971, in an opinion which has proved partly prophetic, the second Justice Harlan, writing for the Court, observed: “Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.... For a court to attempt to *37 catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances would ever be really complete.” McGautha v. California, 402 U.S. 183, 204, 208, 91 S.Ct. 1454, 1466, 1467, 28 L.Ed.2d 711 (1971). In McGautha, the petitioner argued that a statute which left the penalty of death entirely in the jury’s discretion, without any standards to govern its imposition, violated the Fourteenth Amendment. Although the Court did not deny that serious risks were associated with a sentencer’s unbounded discretion, the Court found no remedy in the Constitution for the inevitable failings of human judgment. A year later, the Court reversed its course completely in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam, with each of the nine Justices writing separately). The concurring Justices argued that the glaring inequities in the administration of death, the standardless discretion wielded by judges and juries, and the pervasive racial and economic discrimination, rendered the death penalty, at least as administered, “cruel and unusual” within the meaning of the Eighth Amendment. Justice White explained that, out of the hundreds of people convicted of murder every year, only a handful were sent to their deaths, and that there was “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” 408 U.S., at 313, 92 S.Ct., at 2764. If any discernible basis could be identified for the selection of those few who were chosen to die, it was “the constitutionally impermissible basis of race.” Id., at 310, 92 S.Ct., at 2762 (Stewart, J., concurring). I dissented in Furman. Despite my intellectual, moral, and personal objections to the death penalty, I refrained from joining the majority because I found objectionable the Court’s abrupt change of position in the single year that had passed since McGautha. While I agreed that the Eighth Amendment’s prohibition against cruel and unusual punishments “ ‘may acquire meaning as public opinion becomes enlightened by a humane justice,’ ” 408 U.S., at 409, 92 S.Ct., at 2814, quoting Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910), I objected to the “suddenness of the Court’s perception of progress in the human attitude since decisions of only a short while ago.” 408 U.S., at 410, 92 S.Ct., at 2814. Four years after Furman was decided, I concurred in the judgment in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and its companion cases which upheld death sentences rendered under statutes passed after Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 261, 96 S.Ct. 2960, 2970, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2960, 49 L.Ed.2d 929 (1976). Cf. *38 Woodson v. North Carolina, 428 U.S. 280, 307, 96 S.Ct. 2978, 2992, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 363, 96 S.Ct. 3001, 3020, 49 L.Ed.2d 974 (1976). There is little doubt now that Furman’s essential holding was correct. Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all. Eddings v. Oklahoma, 455 U.S., at 112, 102 S.Ct., at 875. I never have quarreled with this principle; in my mind, the real meaning of Furman’s diverse concurring opinions did not emerge until some years after Furman was decided. See Gregg v. Georgia, 428 U.S., at 189, 96 S.Ct., at 2932 (opinion of Stewart, Powell, and STEVENS, JJ.) (”Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action”). Since Gregg, I faithfully have adhered to the Furman holding and have come to believe that it is indispensable to the Court’s Eighth Amendment jurisprudence. Delivering on the Furman promise, however, has proved to be another matter. Furman aspired to eliminate the vestiges of racism and the effects of poverty in capital sentencing; it deplored the “wanton” and “random” infliction of death by a government with constitutionally limited power. Furman demanded that the sentencer’s discretion be directed and limited by procedural rules and objective standards in order to minimize the risk of arbitrary and capricious sentences of death. In the years following Furman, serious efforts were made to comply with its mandate. State legislatures and appellate courts struggled to provide judges and juries with sensible and objective guidelines for determining who should live and who should die. Some States attempted to define who is “deserving” of the death penalty through the use of carefully chosen adjectives, reserving the death penalty for those who commit crimes that are “especially heinous, atrocious, or cruel,” see Fla.Stat. section 921.141(5)(h) (Supp.1976), or “wantonly vile, horrible or inhuman,” see Georgia.Code Ann. section, 27-2534.1(b)(7) (1978). Other States enacted mandatory death penalty statutes, reading Furman as an invitation to eliminate sentencer discretion altogether. See, e.g., North Carolina Gen.Stat. section, 14-17 (Cum.Supp.1975). But see Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (invalidating mandatory death penalty statutes). Still other States specified aggravating and mitigating factors that were *39 to be considered by the sentencer and weighed against one another in a calculated and rational manner. See, e.g., Georgia Code Ann. section, 17-10-30(c) (1982); cf. Texas Code Crim.Proc.Ann., Article 37.071(c)-(e) (Vernon 1981 and Supp. 1989) (identifying “special issues” to be considered by the sentencer when determining the appropriate sentence). Unfortunately, all this experimentation and ingenuity yielded little of what Furman demanded. It soon became apparent that discretion could not be eliminated from capital sentencing without threatening the fundamental fairness due a defendant when life is at stake. Just as contemporary society was no longer tolerant of the random or discriminatory infliction of the penalty of death, see Furman, supra, evolving standards of decency required due consideration of the uniqueness of each individual defendant when imposing society’s ultimate penalty. See Woodson, 428 U.S., at 301, 96 S.Ct., at 2989 (opinion of Stewart, Powell, and STEVENS, JJ.) referring to Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). This development in the American conscience would have presented no constitutional dilemma if fairness to the individual could be achieved without sacrificing the consistency and rationality promised in Furman. But over the past two decades, efforts to balance these competing constitutional commands have been to no avail. Experience has shown that the consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death. A step toward consistency is a step away from fairness. There is a heightened need for fairness in the administration of death. This unique level of fairness is born of the appreciation that death truly is different from all other punishments a society inflicts upon its citizens. “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson, 428 U.S., at 305, 96 S.Ct., at 2991 (opinion of Stewart, Powell, and STEVENS, JJ.). Because of the qualitative difference of the death penalty, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Ibid. In Woodson, a decision striking down mandatory death penalty statutes as unconstitutional, a plurality of the Court explained: “A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.” Id., at 304, 96 S.Ct., at 2991. *40 While the risk of mistake in the determination of the appropriate penalty may be tolerated in other areas of the criminal law, “in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Ibid. Thus, although individualized sentencing in capital cases was not considered essential at the time the Constitution was adopted, Woodson recognized that American standards of decency could no longer tolerate a capital sentencing process that failed to afford a defendant individualized consideration in the determination whether he or she should live or die. Id., at 301, 96 S.Ct., at 2989. The Court elaborated on the principle of individualized sentencing in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In that case, a plurality acknowledged that strict restraints on sentencer discretion are necessary to achieve the consistency and rationality promised in Furman, but held that, in the end, the sentencer must retain unbridled discretion to afford mercy. Any process or procedure that prevents the sentencer from considering “as a mitigating factor, any aspect of a defendant’s character or record and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” creates the constitutionally intolerable risk that “the death penalty will be imposed in spite of factors which may call for a less severe penalty.” Id., at 604- 605, 98 S.Ct., at 2964-2965 (emphasis in original). See also Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (invalidating a mandatory death penalty statute reserving the death penalty for life-term inmates convicted of murder). The Court’s duty under the Constitution therefore is to “develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual.” Eddings v. Oklahoma, 455 U.S., at 110, 102 S.Ct., at 874. I believe the Woodson-Lockett line of cases to be fundamentally sound and rooted in American standards of decency that have evolved over time. The notion of prohibiting a sentencer from exercising its discretion “to dispense mercy on the basis of factors too intangible to write into a statute,” Gregg, 428 U.S., at 222, 96 S.Ct., at 2947 (White, J., concurring), is offensive to our sense of fundamental fairness and respect for the uniqueness of the individual. In California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987), I said in dissent: “The sentencer’s ability to respond with mercy towards a defendant has always struck me as a particularly valuable *41 aspect of the capital sentencing procedure.... [W]e adhere so strongly to our belief that a sentencer should have the opportunity to spare a capital defendant’s life on account of compassion for the individual because, recognizing that the capital sentencing decision must be made in the context of ‘contemporary values,’ Gregg v. Georgia, 428 U.S., at 181 [96 S.Ct., at 2928] (opinion of Stewart, POWELL, and STEVENS, JJ.), we see in the sentencer’s expression of mercy a distinctive feature of our society that we deeply value.” Id., at 562-563, 107 S.Ct., at 850. Yet, as several Members of the Court have recognized, there is real “tension” between the need for fairness to the individual and the consistency promised in Furman. See Franklin v. Lynaugh, 487 U.S. 164, 182, 108 S.Ct. 2320, 2331-2332, 101 L.Ed.2d 155 (1988) (plurality opinion); California v. Brown, 479 U.S., at 544, 107 S.Ct., at 840 (O’CONNOR, J., concurring); McCleskey v. Kemp, 481 U.S., at 363, 107 S.Ct., at 1804 (BLACKMUN, J., dissenting); Graham v. Collins, --- U.S. ---, ----, 113 S.Ct. 892, 910, 122 L.Ed.2d 260 (1993) (THOMAS, J., concurring). On the one hand, discretion in capital sentencing must be “ ‘controlled by clear and objective standards so as to produce non-discriminatory [and reasoned] application.’ ” Gregg, 428 U.S., at 198, 96 S.Ct., at 2936 (opinion of Stewart, Powell, and STEVENS, JJ.), quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974). On the other hand, the Constitution also requires that the sentencer be able to consider “any relevant mitigating evidence regarding the defendant’s character or background, and the circumstances of the particular offense.” California v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987), (O’CONNOR, J., concurring). The power to consider mitigating evidence that would warrant a sentence less than death is meaningless unless the sentencer has the discretion and authority to dispense mercy based on that evidence. Thus, the Constitution, by requiring a heightened degree of fairness to the individual, and also a greater degree of equality and rationality in the administration of death, demands sentencer discretion that is at once generously expanded and severely restricted. This dilemma was laid bare in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The defendant in Penry challenged the Texas death penalty statute, arguing that it failed to allow the sentencing jury to give full mitigating effect to his evidence of mental retardation and history of child abuse. The Texas statute required the jury, during the penalty phase, to answer three “special issues”; if the jury unanimously answered “yes” to each issue, the trial court was obligated to sentence the defendant to death. *42 Tex.Code Crim.Proc.Ann., Article, 37.071(c)-(e) (Vernon 1981 and Supp.1989). Only one of the three issues--whether the defendant posed a “continuing threat to society”--was related to the evidence Penry offered in mitigation. But Penry’s evidence of mental retardation and child abuse was a two-edged sword as it related to that special issue: “it diminish[ed] his blameworthiness for his crime even as it indicate[d] that there [was] a probability that he [would] be dangerous in the future.” 492 U.S., at 324, 109 S.Ct., at 2949. The Court therefore reversed Penry’s death sentence, explaining that a reasonable juror could have believed that the statute prohibited a sentence less than death based upon his mitigating evidence. Id., at 326, 109 S.Ct., at 2950. After Penry, the paradox underlying the Court’s post-Furman jurisprudence was undeniable. Texas had complied with Furman by severely limiting the sentencer’s discretion, but those very limitations rendered Penry’s death sentence unconstitutional. The theory underlying Penry and Lockett is that an appropriate balance can be struck between the Furman promise of consistency and the Lockett requirement of individualized sentencing if the death penalty is conceptualized as consisting of two distinct stages. In the first stage of capital sentencing, the demands of Furman are met by “narrowing” the class of death-eligible offenders according to objective, fact-bound characteristics of the defendant or the circumstances of the offense. Once the pool of death-eligible defendants has been reduced, the sentencer retains the discretion to consider whatever relevant mitigating evidence the defendant chooses to offer. See Graham v. Collins, --- U.S., at ----, 113 S.Ct., at 916 (STEVENS, J., dissenting) (arguing that providing full discretion to the sentencer is not inconsistent with Furman and may actually help to protect against arbitrary and capricious sentencing). Over time, I have come to conclude that even this approach is unacceptable: It simply reduces, rather than eliminates, the number of people subject to arbitrary sentencing. It is the decision to sentence a defendant to death--not merely the decision to make a defendant eligible for death--that may not be arbitrary. While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught otherwise. It seems that the decision whether a human being should live or die is so inherently subjective-- rife with all of life’s understandings, experiences, prejudices, and passions-- that it inevitably defies the rationality and consistency required by the Constitution. The arbitrariness inherent in the sentencer’s discretion to afford mercy is exacerbated by the problem of race. Even *43 under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die. Perhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to objective standards. No matter how narrowly the pool of death-eligible defendants is drawn according to objective standards, Furman ‘s promise still will go unfulfilled so long as the sentencer is free to exercise unbridled discretion within the smaller group and thereby to discriminate. “ ‘The power to be lenient [also] is the power to discriminate.’ ” McCleskey v. Kemp, 481 U.S., at 312, 107 S.Ct., at 1778 quoting K. Davis, Discretionary Justice 170 (1973). A renowned example of racism infecting a capital-sentencing scheme is documented in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Warren McCleskey, an African-American, argued that the Georgia capital-sentencing scheme was administered in a racially discriminatory manner, in violation of the Eighth and Fourteenth Amendments. In support of his claim, he proffered a highly reliable statistical study (the Baldus study) which indicated that, “after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey’s life had his victim been black.” 481 U.S., at 325, 107 S.Ct., at 1784 (emphasis in original) (Brennan, J., dissenting). The Baldus study further demonstrated that blacks who kill whites are sentenced to death “at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks.” Id., at 327, 107 S.Ct., at 1785 (emphasis in original). Despite this staggering evidence of racial prejudice infecting Georgia’s capital-sentencing scheme, the majority turned its back on McCleskey’s claims, apparently troubled by the fact that Georgia had instituted more procedural and substantive safeguards than most other States since Furman, but was still unable to stamp out the virus of racism. Faced with the apparent failure of traditional legal devices to cure the evils identified in Furman, the majority wondered aloud whether the consistency and rationality demanded by the dissent could ever be achieved without sacrificing the discretion which is essential to fair treatment of individual defendants: “[I]t is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice.... The dissent repeatedly emphasizes the need for ‘a uniquely high degree of rationality in imposing the death penalty’.... Again, no suggestion is made as to how greater ‘rationality’ could be achieved under any type of statute that *44 authorizes capital punishment.... Given these safeguards already inherent in the imposition and review of capital sentences, the dissent’s call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution.” Id., at 314-315, n. 37, 107 S.Ct., at 1778, n. 37. I joined most of Justice Brennan’s significant dissent which expounded McCleskey’s Eighth Amendment claim, and I wrote separately, id., at 345, 107 S.Ct., at 1795, to explain that McCleskey also had a solid equal protection argument under the Fourteenth Amendment. I still adhere to the views set forth in both dissents, and, as far as I know, there has been no serious effort to impeach the Baldus study. Nor, for that matter, have proponents of capital punishment provided any reason to believe that the findings of that study are unique to Georgia. The fact that we may not be capable of devising procedural or substantive rules to prevent the more subtle and often unconscious forms of racism from creeping into the system does not justify the wholesale abandonment of the Furman promise. To the contrary, where a morally irrelevant--indeed, a repugnant--consideration plays a major role in the determination of who shall live and who shall die, it suggests that the continued enforcement of the death penalty in light of its clear and admitted defects is deserving of a “sober second thought.” Justice Brennan explained: “Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of the ‘sober second thought.’ Stone, The Common Law in the United States, 50 Harv.L.Rev. 4, 25 (1936).” Id., at 343, 107 S.Ct., at 1793-1794. In the years since McCleskey, I have come to wonder whether there was truth in the majority’s suggestion that discrimination and arbitrariness could not be purged from the administration of capital punishment without sacrificing the equally essential component of fairness--individualized sentencing. Viewed in this way, the consistency promised in Furman and the fairness to the individual demanded in Lockett are not only inversely related, but irreconcilable in the context of capital punishment. Any statute or procedure that could effectively eliminate arbitrariness from the administration of death would also restrict the sentencer’s discretion to such an extent that the sentencer would be unable to give full *45 consideration to the unique characteristics of each defendant and the circumstances of the offense. By the same token, any statute or procedure that would provide the sentencer with sufficient discretion to consider fully and act upon the unique circumstances of each defendant would “thro[w] open the back door to arbitrary and irrational sentencing.” Graham v. Collins, --- U.S., at ----, 113 S.Ct., at 912 (THOMAS, J., concurring). All efforts to strike an appropriate balance between these conflicting constitutional commands are futile because there is a heightened need for both in the administration of death. But even if the constitutional requirements of consistency and fairness are theoretically reconcilable in the context of capital punishment, it is clear that this Court is not prepared to meet the challenge. In apparent frustration over its inability to strike an appropriate balance between the Furman promise of consistency and the Lockett requirement of individualized sentencing, the Court has retreated from the field, allowing relevant mitigating evidence to be discarded, vague aggravating circumstances to be employed, and providing no indication that the problem of race in the administration of death will ever be addressed. In fact some members of the Court openly have acknowledged a willingness simply to pick one of the competing constitutional commands and sacrifice the other. See Graham, ---U.S., at ----, 113 S.Ct., at 913 (THOMAS, J., concurring) (calling for the reversal of Penry); Walton v. Arizona, 497 U.S. 639, 673, 110 S.Ct. 3047, 3067-3068, 111 L.Ed.2d 511 (1990) (SCALIA, J., concurring in part and concurring in the judgment) (announcing that he will no longer enforce the requirement of individualized sentencing, and reasoning that either Furman or Lockett is wrong and a choice must be made between the two). These developments are troubling, as they ensure that death will continue to be meted out in this country arbitrarily and discriminatorily, and without that “degree of respect due the uniqueness of the individual.” Lockett, 438 U.S., at 605, 98 S.Ct., at 2965. In my view, the proper course when faced with irreconcilable constitutional commands is not to ignore one or the other, nor to pretend that the dilemma does not exist, but to admit the futility of the effort to harmonize them. This means accepting the fact that the death penalty cannot be administered in accord with our Constitution. My belief that this Court would not enforce the death penalty (even if it could) in accordance with the Constitution is buttressed by the Court’s “obvious eagerness to do away with any restriction on the States’ power to execute whomever and however they please.” Herrera, --- U.S. ----, ----, 113 S.Ct. 853, 884, 122 L.Ed.2d 203 (BLACKMUN, J., dissenting). I have explained at length on numerous occasions that my willingness *46 to enforce the capital punishment statutes enacted by the States and the Federal Government, “notwithstanding my own deep moral reservations ... has always rested on an understanding that certain procedural safeguards, chief among them the federal judiciary’s power to reach and correct claims of constitutional error on federal habeas review, would ensure that death sentences are fairly imposed.” Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2528, 120 L.Ed.2d 269 (1992) (BLACKMUN, J., concurring in the judgment). See also Herrera v. Collins, --- U.S., at ----, 113 S.Ct., at 880-881 (BLACKMUN, J., dissenting). In recent years, I have grown increasingly skeptical that “the death penalty really can be imposed fairly and in accordance with the requirements of the Eighth Amendment,” given the now limited ability of the federal courts to remedy constitutional errors. Sawyer, --- U.S., at ----, 112 S.Ct., at 2525 (BLACKMUN, J., concurring in the judgment). Federal courts are required by statute to entertain petitions from state prisoners who allege that they are held “in violation of the Constitution or the treaties of the United States.” 28 U.S.C. § 2254(a). Serious review of these claims helps to ensure that government does not secure the penalty of death by depriving a defendant of his or her constitutional rights. At the time I voted with the majority to uphold the constitutionality of the death penalty in Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976), federal courts possessed much broader authority than they do today to address claims of constitutional error on habeas review. In 1976, there were few procedural barriers to the federal judiciary’s review of a State’s capital sentencing scheme, or the fairness and reliability of a State’s decision to impose death in a particular case. Since then, however, the Court has “erected unprecedented and unwarranted barriers” to the federal judiciary’s review of the constitutional claims of capital defendants. Sawyer, --- U.S., at ----, 112 S.Ct., at 2525 (BLACKMUN, J., concurring in the judgment). See, e.g., Herrera v. Collins, supra; Coleman v. Thompson, 501 U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); McCleskey v. Zant, 499 U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Keeney v. Tamayo-Reyes, --- U.S. ----, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (overruling Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in part); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990). The Court’s refusal last term to afford Leonel Torres Herrera an evidentiary hearing, despite his colorable showing of actual innocence, demonstrates just how far afield the Court has strayed from its statutorily and constitutionally imposed *47 obligations. See Herrera v. Collins, supra. In Herrera, only a bare majority of this Court could bring itself to state forthrightly that the execution of an actually innocent person violates the Eighth Amendment. This concession was made only in the course of erecting nearly insurmountable barriers to a defendant’s ability to get a hearing on a claim of actual innocence. Ibid. Certainly there will be individuals who are actually innocent who will be unable to make a better showing than what was made by Herrera without the benefit of an evidentiary hearing. The Court is unmoved by this dilemma, however; it prefers “finality” in death sentences to reliable determinations of a capital defendant’s guilt. Because I no longer can state with any confidence that this Court is able to reconcile the Eighth Amendment’s competing constitutional commands, or that the federal judiciary will provide meaningful oversight to the state courts as they exercise their authority to inflict the penalty of death, I believe that the death penalty, as currently administered, is unconstitutional. Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness “in the infliction of [death] is so plainly doomed to failure that it--and the death penalty--must be abandoned altogether.” Godfrey v. Georgia, 446 U.S. 420, 442, 100 S.Ct. 1759, 1772, 64 L.Ed.2d 398 (1980) (Marshall, J., concurring in the judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent. This rousing dissent was the result of a Texas case brought before the Supreme Court on a petition for a writ of certiorari. That petition was denied. But the constitutional problems delineated in Justice Blackmun’s dissent still exist. They exist in Texas, in the South and in throughout the entire United States. *48 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court reverse and remand the ruling of the lower court.
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