author: McCORMICK, P. J., MEYERS, J., MANSFIELD, J., JOHNSON, J.,

text:
    James Lewis JACKSON, Appellant, v. The STATE of Texas.
    No. 73,033.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 13, 2000.

      Janet Morrow, Robert A. Morrow, Houston, for appellant.
    Dan McCrory, Asst. Dist., Atty., Houston, Matthew Paul., State’s Atty., Austin, for State.
   OPINION

McCORMICK, P. J.,

delivered the opinion of the Court

in which MANSFIELD, KELLER, PRICE, HOLLAND, WOMACK and KEASLER, JJ., joined;

The offense is capital murder and the sentence is death. Appellant raises fourteen points of error. We affirm.

In point of error thirteen, appellant claims the evidence is insufficient to support the jury’s affirmative finding on the “future dangerousness” special issue. Specifically, appellant argues the State failed to prove beyond a reasonable doubt that there is a probability that appellant would constitute a continuing threat to prison and free society. See Collier v. State, 959 S.W.2d 621, 623 (Tex.Cr.App.1997), cert. denied, 525 U.S. 929, 119 S.Ct. 335, 142 L.Ed.2d 276 (1998). We are required to view the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 866 S.W.2d 9, 16 (Tex.Cr.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994).

The evidence at guilt/innocence shows appellant planned to murder his wife because she intended to divorce him. Appellant murdered his wife and her two daughters. Appellant manually strangled them. He later pawned his wife’s sewing machine and got high on drugs. The punishment evidence, among other things, shows appellant had been convicted of the felony offense of injuring an elderly person. Appellant shot this person in the face. Viewing the evidence in the light most favorable to the jury’s affirmative finding on the “future dangerousness” special issue, we cannot say this finding is irrational. Point of error thirteen is overruled.

In point of error one, appellant claims his confession and its fruits are inadmissible because his warrantless arrest did not meet an exception to the warrant requirement under state law. In point of error two, appellant claims the trial court erroneously denied his requested jury charge which would have instructed the jury to disregard his confession if the jury found it was the product of an illegal arrest.

Appellant first raised this issue in a pretrial motion to suppress. During the pretrial suppression hearing, various law enforcement personnel testified about the circumstances leading up to appellant’s confession. Appellant did not testify at this hearing.

The evidence from the pretrial suppression hearing shows the victims were murdered and their bodies were discovered in an apartment they shared with appellant. Soon after the victims’ bodies were discovered on the morning after the murders, appellant arrived at the crime scene while the police were processing it and conducting their investigation. The police quickly learned that appellant lived at the apartment and was married to one of the victims.

Several of the victims’ family members were also at the crime scene. One of these family members asked appellant what he had done to the victims. Appellant expressed no curiosity about what this family member meant by this question and he did not ask anything about the victims or why the police were in his apartment. Appellant also did not appear upset or surprised about what was going on.

Another one of the victims’ family members cursed appellant and accused him of killing the victims. The police had to separate appellant from the victims’ family members who continued to shout threats at appellant. Partly because of the confrontation between the victims’ family members and appellant, the police put appellant unhandcuffed in the back of a police car.

The police soon discovered a handwritten note in the victims’ apartment. This note stated, “I love [the victims’ first names]. I could not take care of my family. I don’t have a job. I gave them back to God. He and they will understand. James.”

One of the investigating officers then spoke to appellant in the back of the police car. When the detective asked appellant where he was the previous evening, appellant stated that he left the apartment at about 4:15 p.m. and did not return until his recent arrival at the scene. Appellant also stated he had a drug problem and could not keep a job.

Appellant agreed to accompany the police to the homicide office to give a statement. Appellant was transported to the homicide office in the back of a police car in handcuffs. The police told appellant that he was not under arrest and that this was standard procedure. An officer testified that another reason appellant was transported to the homicide office in handcuffs was for the officer’s safety because appellant was 6'6" and weighed over 300 pounds. Appellant eventually confessed to the murders. According to the police, appellant was not under arrest when he confessed. The trial court denied appellant’s suppression motion.

The prosecution presented this evidence at trial. Appellant testified for the first time at trial that the police never let him leave the police car after he was initially put there. Appellant also testified that when the police handcuffed him for the ride to the homicide office they told him he was under arrest. The trial court denied appellant’s requested jury charge on the legality of his arrest.

Appellant claims his “arrest” was illegal because it did not meet an exception to the warrant requirement under state law. His brief states:

“In this case all of Appellant’s statements, including the third one (the only inculpatory one) were obtained as a direct result of his illegal arrest. From the beginning, the police had probable cause to arrest Appellant based upon the signed, handwritten note they found in plain view at the scene. Instead of taking their evidence to a judge to obtain an arrest warrant, as they are required to do by Texas law (with certain exceptions not remotely applicable here) the officers arrested appellant without a warrant and questioned him for fifteen hours until they got the confession they wanted.
Any reasonable person subjected to the police conduct in this case would have believed that he was not free to leave. The law enforcement authorities had surrounded and blocked entry to Appellant’s apartment. They intercepted him as he returned home; instead of allowing him to enter his apartment they locked him in the back seat of a patrol car. Then [the police], having seen the handwritten note reading, “I love [naming the victims’first names], I could not take care of my Family. I don’t have a Job. I gave them back to God he and they will understand James, ” and knowing Appellant’s name and relationship to the three deceased women, came down to the patrol car and questioned Appellant.” (Emphasis Supplied).

Appellant’s brief does not clearly set out when appellant claims the police illegally “arrested” him. It appears he claims an illegal “arrest” occurred when “the police had probable cause to arrest Appellant based upon the signed, handwritten note they found in plain view at the scene” and when the police learned “Appellant’s name and relationship to the three deceased women.”

We agree with appellant that “from the beginning” the police had probable cause to arrest appellant “based upon the signed, handwritten note” together with the police knowledge of appellant’s name and his relationship to the victims and the other circumstances present at the crime scene. See generally Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App.1997) (“probable cause” determinations based on common sense and not legal technicalities). We disagree, however, that a warrantless arrest based on this information does not constitute an exception to the warrant requirement. Article 14.08(a)(4), V.A.C.C.P., authorizes a warrantless arrest in these circumstances. See id. (police can arrest without a warrant “persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person’s family or household”).

In addition, since the material facts leading up to when appellant claims he was “arrested” are undisputed, appellant was not entitled to a jury instruction on the legality of his “arrest.” Cf. Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App.1986); Moon v. State, 607 S.W.2d 569, 572 (Tex.Cr.App.1980). To the extent appellant’s trial testimony raised a fact issue on whether he was illegally “arrested” when he was first placed in the back of the police car, the undisputed facts removing the taint of this illegal “arrest” also disentitled appellant to a jury instruction on the legality of this “arrest.” See id.; Footnote 1.

Finally, any error in not instructing the jury on this issue was harmless in light of appellant’s handwritten note claiming responsibility for murdering the victims and the other evidence presented at trial. Points of error one and two are overruled.

In points of error three, four, and five, appellant argues that the mitigation special issue violates the Eighth Amendment. In points of error six and seven, appellant claims the “10-12” rule violates the Eighth Amendment. We have resolved these claims adversely to appellant. See Prystash v. State, 3 S.W.3d 522, 536-37 (Tex.Cr.App.1999). Points of error three through seven are overruled.

In points of error eight and ten, appellant claims counsel was ineffective for not claiming that the Eighth Amendment erects a per se bar to the admission of victim impact evidence. The Eighth Amendment erects no per se bar to the admission of this evidence. See Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Mosley v. State, 983 S.W.2d 249, 261-65 (Tex.Cr.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466,143 L.Ed.2d 550 (1999). Points of error eight and ten are overruled.

In his ninth point of error, appellant asserts for the first time on appeal that he is entitled to a new punishment hearing during which he now informs this Court he will decide whether to waive the mitigation issue. See Mosley, 983 S.W.2d at 263-64 (dicta suggesting that a defendant may waive the mitigation issue). Appellant did not raise in the trial court a claim that he could waive the mitigation issue, so this claim has not been preserved for appeal. Point of error nine is overruled.

In his eleventh point of error, appellant argues that counsel was ineffective for failing to object to the prosecution’s jury argument at punishment that jurors should consider victim impact evidence in answering the “future dangerousness” special issue. During closing argument at the punishment phase, the prosecution without objection urged the jury to consider victim impact evidence in answering the “future dangerousness” issue.

“We want you to consider the effect this crime has had on the victims, not only Ericka and Sonny and Sharon, but Johnny Melvin Mayes, their father. You could imagine how he feels now. How he must have felt that day when he found out that his only two daughters, teenage daughters were gone. He would never see them again, he would never talk to them again, wouldn’t see Ericka graduate, wouldn’t see them get married, wouldn’t see them grow up and have children, would never experience any of those joys that we all take for granted because [appellant] took all of that away from him.
‘We all hope that when we have kids, I know a lot of you have had kids already, that you’re going to go before they do. How tragic it is for a parent to have to lose a child while they are still alive. Johnny Melvin Mayes had to go through that thanks to [appellant], and he fives with the loss of his two daughters everyday. You know that from what his own mother told you earlier today. We certainly want you to consider how this crime has affected Mr. Mayes.”

In Mosley, this Court decided that victim impact evidence “is relevant only insofar as it relates to the mitigation issue.” See Mosley, 983 S.W.2d at 263. Mosley also decided that victim impact evidence “of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability.” See Mosley, 983 S.W.2d at 261 fn. 16.

It is difficult to imagine how appellant could not have reasonably foreseen the impact that the victims’ deaths would have on others. The victim impact evidence, therefore, was relevant to the “future dangerousness” issue. Moreover, any error in the prosecution’s argument did not harm or prejudice appellant. The prosecution could have made the same argument with respect to the mitigation issue. And, it is difficult to conceive of the jury ignoring all the other evidence and affirmatively answering the “future dangerousness” special issue based solely on the victim impact evidence. On this record, the jury would have affirmatively answered the “future dangerousness” special issue with or without the prosecution’s jury argument. Point of error eleven is overruled.

In point of error twelve, appellant argues the trial court erroneously overruled his objection to the prosecutor’s jury argument at punishment that compared the value of appellant’s life to the lives of the victims. The prosecution argued:

“No reason to give this person a life in the penitentiary sentence because he has worked hard in this incident to earn the verdict you’re going to give, the verdict the law demands, the verdict the facts demand and the verdict you will always be comfortable with whenever you rise, whenever you set, whenever you go about your business you will be comfortable that you made the right decision to give this man a life sentence to say there are mitigating factors there or to say he is not a continuing threat is to mean that his life is more important than Sharon Jackson’s, than Ericka or Sonny’s. [Sic].”

The trial court overruled appellant’s objection that this argument was “asking the jury to make a comparative judgment based on value of life on victim versus the defendant.”

Relying on Payne, appellant argues that a prosecutor may not compare the worth of a victim to a defendant’s worth. This is incorrect because Payne discourages “measuring the worth of the victim compared to other members of society.” See Payne, 111 S.Ct. at 2607 (victim impact evidence should not encourage “a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy”); Mosley, 983 S.W.2d at 262; compare Goff v. State, 931 S.W.2d 537, 554-56 (Tex.Cr.App.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997) (defendant not permitted to present evidence of victim’s homosexuality on “assumption that jury would consider a homosexual a less valuable member of society” than other members of society).

The prosecution’s argument did not do this. It did not use the victim impact evidence for a purpose prohibited by Payne and Mosley. Point of error twelve is overruled.

In point of error fourteen, appellant argues the trial court erred in denying his pretrial motion to introduce testimony of his family and friends regarding their feelings on the prospect of a death sentence and the impact his execution would have on them. The trial court did not abuse its discretion to exclude this testimony. See Fuller v. State, 827 S.W.2d 919, 935-36 (Tex.Cr.App.1992), cert. denied, 509 U.S. 940, 114 S.Ct. 13, 125 L.Ed.2d 765 (1993). Point of error fourteen is overruled.

The judgment of the trial court is affirmed.

MEYERS, J., filed a concurring opinion; MANSFIELD, J., filed a concurring opinion on Point of Error No. 11; KELLER, J., concurred on Point of Error No. 11; JOHNSON, J., filed a concurring opinion in which PRICE, HOLLAND, and WOMACK, JJ., joined.

MEYERS, J.,

delivered this concurring opinion.

The majority quietly creates new law today, elevating to a holding dicta previously contained in a footnote.

In Mosley v. State, 983 S.W.2d 249, 263 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999), the Court broke ground in holding that victim impact and character evidence is relevant to the mitigation special issue at punishment in capital cases. But the Court took pains to note that it was relevant only to the mitigation issue:

... victim impact and character evidence is relevant only insofar as it relates to the mitigation issue. Such evidence is patently irrelevant, for example, to a determination of future dangerousness.

Id. The Court even went so far as to state that a capital defendant could avoid the State’s presentation of victim-related evidence by affirmatively waiving rebanee upon the mitigation issue:

Victim-related evidence is relevant to show that the mitigating circumstances are not “sufficient” to warrant imposing a life sentence. Such evidence would be wholly irrelevant if appellant affirmatively waived submission and reliance upon the mitigation special issue.... [A] defendant can waive reliance upon and submission of the mitigation issue, and if he does, victim impact and character evidence would be irrelevant and hence inadmissible.

Id. at 261.

Today’s holding that victim-related evidence is relevant to future dangerousness rests on a footnote from the Court’s opinion in Mosley which appears to recognize an exception to the rule that such evidence is irrelevant to future dangerousness. There, the Court noted that victim-related evidence “of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerous-ness_” Id. at 261 n. 16. No authority is cited or discussion is undertaken in support of the Court’s statement. Considering that the Mosley footnote was dicta, does not provide any explanation beyond its two sentences, and appears to recognize a significant exception to what is stated in plain terms in the body of the Court’s opinion in Mosley, and considering that the Court prior to Mosley was divided on this issue, it would seem that the majority today would provide some explanation and further authority for its holding. See Ex parte Alexander, 861 S.W.2d 921, 922 (Tex.Crim.App.1993) (this Court not bound by dicta found in footnotes); Young v. State, 826 S.W.2d 141, 144 n. 5 (Tex.Crim.App.1991) (opinion on original submission)(noting in footnote that footnotes are generally regarded as dictum).

I nonetheless concur in the result. Appellant claims his counsel was ineffective for failing to object to the State’s argument at punishment that the jury should consider victim impact evidence in answering the future dangerousness special issue. Even assuming counsel’s failure to object amounted to deficient performance, appellant nonetheless does not prevail on this issue because he has failed to demonstrate prejudice. The State’s argument as to the victim-impact evidence was part of a longer discourse concerning appellant’s lack of remorse for the murders. Lack of remorse and disregard for human life is relevant on the issue of future dangerousness. In addition, the argument fell immediately before the State’s discussion of the mitigation issue, the issue under which the State could have properly asserted the victim impact evidence.

Further, the facts of the crime were alone sufficient to support an affirmative finding of future dangerousness. Appellant choked both of his step-daughters and his wife because he was angry about his wife’s stated intentions to divorce him. When his wife had refused to talk to him on the phone that day, appellant stated “That’s when I made up my mind to just take her out....” When one of his stepdaughters came home from school that day, appellant asked her how she felt about the divorce. When she expressed indifference, appellant choked her with his forearm and placed her in her bed. When the second daughter returned home, he asked her about the divorce. She told him she would love him regardless of the divorce, and when she approached appellant to hug him, he choked her. He also put her body in her bed. When appellant’s wife later came home, she checked on the girls and thought they were asleep. She told appellant she still intended to divorce him, and appellant choked her to death as well. Other evidence of violence on the part of appellant was admitted on the issue of future dangerousness.

For these reasons, I concur.

MANSFIELD, J.,

delivered the concurring opinion.

I do not agree that victim impact evidence is relevant with respect to the future dangerousness special issue. However I do not believe that the argument by the prosecution at punishment that the jury should consider victim impact evidence in the context of the future dangerousness special issue harmed appellant, given the circumstances of the offense and given the other evidence introduced at appellant’s trial.

Accordingly, I can only concur with respect to the majority’s disposition of point of error eleven and otherwise join the opinion of the Court.

JOHNSON, J.,

filed a concurring opinion, in which PRICE, HOLLAND and WOMACK, JJ., joined.

I concur only in the judgment affirming the conviction and sentence. I write separately to explain my reasons for doing so.

In point of error thirteen, appellant alleges that the State failed to prove beyond a reasonable doubt the probability that appellant would constitute a continuing threat to prison society for forty years and/or that he would constitute a continuing threat to free society if he were released in forty years. The trial court did instruct the jury on parole eligibility. In reviewing the sufficiency of the evidence supporting the future dangerousness issue, we ask whether, in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Chambers v. State, 866 S.W.2d 9, 16 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994). “As to future dangerousness, we have held that in deciding whether a defendant poses a continuing threat to society, a jury considers not only free society, but also prison society.” Morris v. State, 940 S.W.2d 610, 613 (Tex.Crim.App.1997), cert. denied, 520 U.S. 1278,117 S.Ct. 2461, 138 L.Ed.2d 218 (1997). A jury can rationally infer future dangerousness from the brutality of the offense alone. Sonnier v. State, 913 S.W.2d 511, 517 (Tex.Crim.App.1995). Viewed in this light, the evidence adduced at trial supported an affirmative finding on future dangerousness.

In a statement proffered at trial, appellant confessed that he and his wife, Sharon, argued on Monday and Tuesday, April 6 and 7, 1997, about his unemployment. On Wednesday, she told appellant that she intended to file for divorce. She refused to talk to him on the phone at work that day. According to appellant’s statement, “That’s when I made up my mind to just take her out, because I felt like the reason she was leaving me was unnecessary and there was no just cause for it.”

Later on Wednesday, appellant’s stepdaughter, Sonny, returned home at 2:30 p.m., and appellant called her into the master bedroom to discuss the divorce with her. When Sonny expressed indifference about the divorce, appellant choked her with his forearm. He then hid her body in her bed. When Sonny’s sister, Ericka, returned home at 2:55 p.m., appellant also called her into the master bedroom to discuss the divorce with her. Ericka told appellant that she would love him regardless of the divorce. When Ericka approached appellant to hug him, appellant choked her to death, then placed her in her bed. According to appellant, “[t]hat was cleaning up behind a wrong that I had already did.”

Shortly thereafter, Sharon phoned appellant and asked him to pick her up from work. When she asked the whereabouts of the girls, appellant told her that Sonny had stayed late at school and that Ericka had gone to visit her army recruiter. Sharon checked on the girls when she arrived home and thought they were asleep. She asked appellant not to wake them because they had stayed up late the night before. After telling appellant that she still intended to divorce him, appellant choked her to death, as well. He then pawned her sewing machine and got high on drugs.

During the punishment phase of appellant’s trial, the State introduced the testimony of Wanda Wallace, the grandmother of three of appellant’s children. Wallace testified that appellant dated Wallace’s daughter, Shernel Benson, and fathered three children by Benson. During February of 1989, appellant introduced Benson to drugs, taking Benson and their three-year-old daughter, Stephanie, over to a “drug house.” Wallace went to the “drug house” herself to retrieve Stephanie and returned to her home with the child. When Wallace arrived home, Wallace’s husband and father were charging a car battery with jumper cables. Wallace returned the jumper cables to the trunk of the car and walked back between the car and the van. Her sister called, “[L]ook out, he got a gun,” and appellant fired a pellet at Wallace and hit her car trunk. Appellant’s second shot struck Wallace’s father in the face and ear. The third shot went over Wallace’s head and hit the windows of the apartment behind her. Appellant was charged with the felony offense of injury to the elderly and received ten years in the Texas Department of Criminal Justice — Institutional Division. Finally, Wallace testified that when Benson became pregnant with their first child, appellant was married to another woman. Appellant’s wife later died.

Although appellant was perturbed about his impending divorce, his state of mind does not temper the commission of a triple murder. Disguising the girls’ deaths and lying to their mother about their whereabouts were deliberate acts calculated to conceal his actions. Further, his determination to kill Sharon on the morning after she told him that she intended to file for divorce exhibited forethought and deliberateness.

These factors, coupled with appellant’s prior criminal record, including his attempt to shoot his children’s grandmother, are evidence of an escalating pattern of violence. We have held previously that “an escalating pattern of disrespect for the law” supports a finding of future dangerousness. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). Appellant has failed to undermine the sufficiency of the evidence supporting the future dangerousness issue.

In his first point of error, appellant argues that police arrested him without an arrest warrant in violation of Chapter 14 of the Texas Code of Criminal Procedure, thereby rendering appellant’s confession and the fruits thereof inadmissible. Following a hearing on a motion to suppress on these grounds, the trial court found appellant’s statement admissible. We review a trial court’s decision at a suppression hearing to admit or exclude evidence under a standard of abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993). We will not disturb factual determinations made by the trial court at a hearing on a motion to suppress evidence if the record supports its findings. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). While we defer to the trial court’s findings based upon the credibility and demeanor of the officers testifying at the suppression hearing, we also consider the testimony of appellant, who testified for the first time at trial, to determine de novo the legality of appellant’s arrest. See Guzman, 955 S.W.2d at 89 (“appellate courts may review de novo ‘mixed questions of law and fact’ ”).

At the suppression hearing and at trial, several officers who were present at the crime scene and at the stationhouse on the day after the murders recounted the events leading up to appellant’s confession. Appellant encountered law enforcement officials shortly after he arrived at the crime scene at 9:40 a.m. on April 9, 1997. Upon his arrival, the victims’ family members cursed appellant and accused him of committing the victims’ murders. Accordingly, Officer Gutierrez intervened and asked the family members to leave the area while he frisked appellant, then placed him in the back seat of a patrol car without handcuffs. While Gutierrez removed appellant from the vicinity of the victims’ enraged family members, Detective Rossi and several other deputies were investigating the crime scene in the apartment upstairs. During his first cursory inspection of the apartment, Rossi discovered a note which read: “I love Sharon, Sonny, Ericka. I could not take care of my family. I don’t have a job. I gave them back to God. He and they will understand. James.” Rossi heard that the husband of one of the victims had arrived downstairs, and shortly thereafter Rossi went downstairs and visited with appellant in the back seat of the patrol car. Appellant asked Rossi if he was under arrest, to which Rossi replied that he was not under arrest. Rossi asked appellant for his written consent to search the apartment and appellant’s car, and appellant gave it. Appellant also agreed to give Rossi a statement at the sheriffs office located at 601 Lockwood. Between twenty and forty minutes later, another officer removed appellant from the first patrol car and handcuffed him. Rossi explained to appellant that the officer was handcuffing him according to police procedure and for security purposes. Appellant indicated that he understood.

After leaving the scene and arriving at the Lockwood office, the officer removed appellant’s handcuffs. Detective Burch then read appellant his rights. Between 11:00 a.m. and 1:30 p.m., appellant gave a handwritten statement and a typewritten statement, both of which exonerated him, and both accompanied by Miranda warnings. As appellant signed the written warnings, he asked Burch if he was in custody. Burch replied that appellant was a suspect, but did not say that appellant was in custody. At some point following the statements, Burch showed appellant to the bathroom. After reading appellant’s two statements, Rossi asked appellant to give head hair, pubic hair, fingernail scrapings, blood and saliva samples, and his clothes for analysis. Appellant agreed.

Between 2 p.m. and 4 p.m., Ernie Hul-sey administered a polygraph examination to appellant at the Lockwood office with appellant’s consent, then confronted appellant with his conclusion that the test results showed that appellant was untruthful on relevant questions.

From about 7 p.m. to 11 p.m., appellant conversed with Detective Pinkins about issues unrelated to the facts of the case. At about 11 p.m., Pinkins asked appellant about some aspects of the case, in particular, the note found at the scene of the crime. Appellant admitted that he wrote it. Around midnight, Detective Brown relieved Pinkins for forty-five minutes to an hour while Pinkins took a break, then called Pinkins back into the interview room when appellant announced that he wished to confess. Appellant made his confession at 1:10 a.m., again with the accompaniment of written Miranda warnings. At no time during the day did appellant ask for a lawyer, ask to terminate any interview, or ask to leave the stationhouse.

After hearing the testimony of members of the Harris County Sheriffs Department, at both the suppression hearing and trial, appellant testified, for the first time, at trial. According to appellant’s version, police refused to allow appellant to leave the patrol car at the crime scene. Further, a detective got into the car with appellant and asked him to sign a consent form purportedly allowing the police to remove his wife’s and step-daughters’ bodies from the apartment. Appellant did not read the contents of the consent form before he signed it. Appellant repeatedly asked permission to go upstairs to his apartment, which police denied. When police removed appellant from the first patrol car to handcuff him, they told appellant that he was under arrest. After appellant arrived at the police station, a detective, possibly Detective Burch, handcuffed appellant to a bench. The same detective asked appellant to write down his whereabouts during the crime. Appellant then asked the detective where his lawyer was, and the detective told appellant that he did not need a lawyer. The detective had not yet read appellant his rights. Appellant finally gave a statement without the presence of a lawyer because the detective told appellant repeatedly that he was not under arrest. At no point did the detective read appellant his rights, although appellant did sign a waiver of his rights before handwriting his first statement.

According to appellant, about forty-five minutes after taking his handwritten statement, Detective Burch moved appellant to an interview room for further questioning. Detective Rossi and four other officers entered the interview room, showed appellant the note left at the crime scene, and asked appellant to explain it. Appellant told officers that “it was a prayer that [appellant] used to pray.” The officers then told appellant that he was a suspect. Appellant stated that he became upset by the questioning and repeatedly asked the officers if he could leave. The officers refused to allow appellant to leave because they wanted to continue questioning him. They questioned appellant for forty-five minutes to an hour.

After the initial period of questioning, Detective Rossi and other officers returned to the interview room and asked appellant if he was involved in a cult murder in California, comparing the murder in California to the instant case. One of the other detectives then told appellant that “when [the detective] walked in the [bedrooms at the apartment] that the bodies had called out to him that [appellant] had done it, [appellant] had done it, for [the detective] to help them out.” Appellant again asked to leave the interview room. The officers refused, telling him to calm down. They continued to question him about the cult murder in California.

Later, a detective asked appellant for some specimens from appellant which appellant did not agree to give. Finally, appellant testified that he did not author the statement confessing to the crime but that Detective Brown deceived him into signing it by telling him it was just a typed version of his previous handwritten statement, even though the new statement was considerably longer than the first statement and began differently. The detective encouraged appellant to sign the statement so he could take appellant home. After appellant signed the statement, the detective took appellant to jail.

Given the evidence, I believe that the police properly arrested appellant without a warrant. Under Tex.Code Chim. PROC. art. 14.03(a)(4), a peace officer may arrest, without warrant, “persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person’s family or household.” We have held that the test for probable cause for a warrantless arrest is “[w]hether at that moment the facts and circumstances within the officer’s knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.” Rance v. State, 815 S.W.2d 633, 635 (Tex.Crim.App.1991) (citing Stull v. State, 772 S.W.2d 449, 451 (Tex.Crim.App.1989)). Upon discovery of the note at the crime scene by Detective Rossi and other deputies, probable cause arose to arrest its author. When Rossi also learned that appellant was both its author and the husband of one of the victims, the language of art. 14.03(a)(4) vested him with the statutory right to arrest appellant without a warrant. Therefore, appellant’s confession stemmed from a proper warrantless arrest, consummated possibly before appellant left the crime scene and certainly before he confessed.

In his second point of error, appellant argues that the trial court erred in refusing his request for an art. 38.23 instruction, which would instruct the jury to disregard appellant’s written statement if they found that police had obtained it as a product of an illegal warrantless arrest. Since, as explained above, I believe that appellant gave his confession following a proper warrantless arrest under art. 14.03(a)(4), the confession was admissible as the product of a legal arrest.

In points of error three, four, and five, appellant argues that the mitigation special issue violates the Eighth Amendment, because (1) it omits a burden of proof, (2) we cannot conduct a meaningful appellate review of the jury’s determination, and (3) we will not review the mitigation issue for sufficiency of the evidence. As appellant acknowledges, we have heretofore foreclosed each of these arguments relating to the mitigation special issue. See, e.g., Anderson v. State, 932 S.W.2d 502, 508 (Tex.Crim.App.1996), cert. denied, 521 U.S. 1122, 117 S.Ct. 2517, 138 L.Ed.2d 1019 (1997); McFarland v. State, 928 S.W.2d 482, 498-99 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Eldridge v. State, 940 S.W.2d 646, 652-53 (Tex.Crim.App.1996).

In points of error six and seven, appellant argues that requiring ten votes for the jury to return a negative answer to the first or second special issue violates the Eighth Amendment. Appellant tangentially complains that “truth-in-sentencing” mandates an instruction on the default penalty of life imprisonment to avoid jurors’ speculation on the consequences of a hung jury. However, we have previously upheld as constitutional the instructions in art. 37 .071, sections 2(d) and 2(f), known as the “10-12” rule. See, e.g., McFarland, 928 S.W.2d at 519. Further, we have previously held that “truth-in-sentencing” does not mandate that the jury receive information as to the “default penalty.” See, e.g., McFarland, 928 S.W.2d at 519.

In points of error eight and ten, appellant alleges that the Eighth Amendment erects a per se bar to the admission of victim impact evidence for the purpose of mitigation in the present Texas death penalty scheme; and consequently, that trial counsel rendered ineffective assistance in violation of federal and state constitutions by failing to renew his objection during the punishment phase to the admission of victim impact evidence.

During the punishment phase, the State called Ira Lane Mayes, the grandmother of Ericka and Sonny Mayes. Mayes testified to the reaction of her son, Johnny Melvin Mayes, upon hearing the news of his daughters’ murders, that she and her family had to physically hold him to keep him from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment. She further testified that her son rolled on the ground of her home and screamed, “[J]ust bury me in a hole, I can’t take it, I don’t have no children, I don’t have anybody anymore.” Since the death of the girls, her son had become forgetful, moaned frequently in the morning and at night, and stood in the dining room turning around and around the night before trial.

The Supreme Court has held that if individual states choose to permit the admission of victim impact evidence and prosecutorial argument on victim impact evidence, “the Eighth Amendment erects no per se bar,” regardless of the death penalty scheme employed by the individual state. Payne v. Tennessee, 501 U.S. 808, 826-28, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991). As appellant acknowledges, we have previously held victim character and impact evidence admissible in the context of the mitigation special issue, “to show the uniqueness of the victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence.” Ladd v. State, 3 S.W.3d. 547, 571 (Tex.Crim.App.1999) (citation omitted), cert. denied, — U.S. — 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). As such, appellant’s claim of ineffective assistance of counsel also fails.

In his ninth point of error, appellant asserts that we should grant him a new trial on punishment and offer him the option of waiving submission of the mitigation issue per dicta in Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

Appellant claims that the law existing at the time of his punishment trial, five months prior to this Court’s decision in Mosley, prohibited him from waiving the mitigation issue, an option he would have exercised to foreclose the State’s introduction of victim impact evidence.

Recently, however, we noted that “[t]his Court’s opinion in Mosley did not create ... a new rule regarding waiver of the mitigation issue. To date, this Court has not decided whether a capital defendant can waive that issue. The statement in Mosley [as to that issue] was not necessary to the holding in that case and is therefore dicta.” Tong v. State, 25 S.W.3d 707, 711 (Tex.Crim.App. 2000).

In point of error eleven, appellant argues that trial counsel rendered ineffective assistance at punishment for failing to object to the prosecutor’s argument that jurors should consider victim impact evidence in answering the future dangerousness special issue. To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) deficient performance, and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. at 2065. A defendant must overcome the strong presumption that an attorney’s actions were sound trial strategy. Id.

During closing argument following the punishment phase, the prosecutor addressed each of the special issues and the corresponding evidence presented at the punishment phase. In concluding his discussion of the future dangerousness issue, he argued without objection:

We want you to consider the effect this crime has had on the victims, not only Ericka and Sonny and Sharon, but Johnny Melvin Mayes, their father. You could imagine how he feels now. How he must have felt that day when he found out that his only two daughters, teenage daughters were gone. He would never see them again, he would never talk to them again, wouldn’t see Ericka graduate, wouldn’t see them get married, wouldn’t see them grow up and have children, would never experience any of those joys that we all take for granted because [appellant] took all of that away from him.
We all hope that when we have kids, I know a lot of you have had kids already, that you’re going to go before they do. How tragic it is for a parent to have to lose a child while they are still alive. Johnny Melvin Mayes had to go through that thanks to [appellant], and he lives with the loss of his two daughters everyday. You know that from what his own mother told you earlier today. We certainly want you to consider how this crime has affected Mr. Mayes.

These statements fell at the end of a long discourse on appellant’s lack of remorse for the murders, as well as his lack of remorse for the effect of the murders on his victims’ family members. While we have observed that victim impact evidence is generally relevant only to the mitigation issue, we have also noted that “[v]ictim impact and character evidence of which a defendant is aware at the time he commits the crime is necessarily relevant to his future dangerousness and moral culpability.” Mosley, 983 S.W.2d at 263 & 261 n. 16; see also Ford v. State, 919 S.W.2d 107, 112 (Tex.Crim.App.1996) (“Remorselessness and disregard for human life have been considered in determining the sufficiency of the evidence to support a jury finding of probability of committing criminal acts of violence that would constitute a continuing threat to society”) (citations omitted). Because the prosecutor’s argument discussed victim impact evidence of which appellant was aware at the time he committed the murders of Sonny and Ericka — namely, that their deaths would grieve their father — it arguably pertained to the issue of future dangerousness. Therefore, appellant has not shown that his attorney rendered deficient performance.

In point of error twelve, appellant argues that the trial court erred by overruling a defense objection to the prosecutor’s argument that compared the value of appellant’s life to the lives of the victims. Toward the end of closing argument following the punishment phase, the prosecutor admonished the jury:

No reason to give this person a life in the penitentiary sentence because he has worked hard in this incident to earn the verdict you’re going to give, the verdict the law demands, the verdict the facts demand and the verdict you will always be comfortable with whenever you rise, whenever you set, whenever you go about your business you will be comfortable that you made the right decision to give this man a life sentence to say there are mitigating factors there or to say he is not a continuing threat is to mean that his life is more important than Sharon Jackson’s, than Ericka or Sonny’s. [Sic].

Immediately following this statement, defense counsel objected on the grounds that the prosecutor was “asking the jury to make a comparative judgment based on value of life on victim versus the defendant,” which the trial court overruled.

Citing Payne v. Tennessee, supra, appellant argues that a prosecutor may not compare the life worth of a victim with the defendant’s. Appellant misinterprets Payne’s holding. The concern at issue in Payne was whether admission of victim impact evidence would encourage “a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.” Payne, 501 U.S. at 823, 111 S.Ct. at 2607. We have echoed a similar concern. See Mosley, 983 S.W.2d at 262. However, the prosecutor’s argument in the instant case in no way compared the worths of the victims; instead, it encouraged the jury to assess the death penalty against a defendant who had killed his victims. The authority appellant cites does not stand for the proposition he espouses.

In appellant’s fourteenth point of error, he argues that the trial court erred in denying his pre-trial motion to introduce testimony of his family and friends regarding their feelings on the prospect of a death sentence and the impact his execution would have on them. Because the crux of this testimony necessarily focuses on whether the witnesses believe that appellant should live or die, it does not pertain to appellant’s background, character, record, or the circumstances of the offense. See Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 2949, 106 L.Ed.2d 256 (1989); Goff v. State, 931 S.W.2d 537, 555 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). It is therefore irrelevant to the deathworthiness of the defendant. Fuller v. State, 827 S.W.2d 919, 936 (Tex.Crim.App.1992) (“since that specific desire does not pertain to appellant’s background, character, or record, or the circumstances of the offense, the trial court did not err in prohibiting it”), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993). Accordingly, the trial court did not err in prohibiting this testimony.

Based on the foregoing, I concur only in the judgment affirming the conviction and sentence.

      . If appellant claims an illegal arrest occurred when he was first placed unhand-cuffed in the back of the police car, the trial court was entitled to find otherwise at the pretrial suppression hearing. Moreover, for the reasons that follow in the text, subsequent and intervening events such as the officers’ discovery of the note removed the taint of this "illegal” arrest. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct 2254, 45 L.Ed.2d 416 (1975); Johnson v. State, 871 S.W.2d 744 (Tex.Cr.App.1994).

      . During the punishment phase, the grandmother of two of the victims testified about the reaction of her son to his daughters’ murders. The grandmother testified that she and her family had to physically keep her son from going to the apartment where the girls were murdered, and that she finally asked a neighbor to call 911 and request police assistance in talking her son out of going to the apartment. The grandmother also testified that her son rolled on the ground of her home and screamed, "[J]ust bury me in a hole, I can’t take it, I don't have no children, I don’t have anybody anymore.” Since the death of the girls, her son had become forgetful, and moaned frequently in the morning and at night. He stood in the dining room turning around and around the night before trial.

      . The Court in Mosley assumed for purposes of its analysis that the defendant "was unaware, at the time of the crime, of the victims’ character or of the impact that the victims' deaths will have on others.” Mosley, 983 S.W.2d at 261 n. 16.

      . In Ford v. State, 919 S.W.2d 107, 115 (Tex.Crim.App.1996), a majority of the Court held that victim-impact evidence was relevant at punishment in a capital case. The Court did not specify as to which issue(s) it was relevant to, but only that it was "relevant to sentence.” In a case decided on the same day, Smith v. State, 919 S.W.2d 96 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516, a three-judge plurality held that victim-character and victim-impact evidence was irrelevant to either the future dangerousness issue or the mitigation issue. The plurality nonetheless held the error in admitting such evidence was harmless. One judge dissented on the ground that he did not view the error as harmless, but otherwise joined. Id. (Clinton, J., dissenting). Three other judges concurred in the result without opinion. Id. (McCormick, P.J., White and Keller, J.J., concurring). Another judge concurred with opinion, suggesting that victim-impact evidence may be relevant, subject to the rigors of Rules 401, 402 and 403. Id. (Overstreet, J., concurring). Finally, another judge concurred with opinion, stating that while victim-impact evidence had no relevance to future dangerousness, it was relevant to the mitigation issue. Id. at 105-06 (Mansfield, J., concurring).

      .The jury may also employ a non-exclusive list of factors to assist in assessing the future dangerousness issue, including:
      1. the circumstances of the capital offense, including the defendant’s state of mind and whether he or she was working alone or with other parties;
      2. the calculated nature of the defendant's acts;
      3. the forethought and deliberateness exhibited by the crime’s execution;

        4. the existence of a prior criminal record and the severity of the prior crimes;
      5. the defendant’s age and personal circumstances at the time of the offense;
      6. whether the defendant was acting under duress or domination of another at the time of the offense;
      7. psychiatric evidence; and
      8. character evidence.

        Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).

      . These children were not the victims in the instant case.

      . Chapter 14 of the Texas Code of Criminal Procedure [Arrest Without a Warrant] delineates the cases in which a "peace officer or any other person, may, without a warrant, arrest an offender” and the required procedures.

      . Rossi later explained on cross-examination that the officer had handcuffed appellant because he was the only person transporting appellant to the office, because of appellant’s size at 6' 6" and 305 pounds, and because of the scene of rowdy people.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: MACK KIDD, Justice.

license: Public Domain

text:
    Ex parte Edie Dione MARTIN.
    No. 03-97-00113-CR.
    Court of Appeals of Texas, Austin.
    Aug. 31, 2000.
    Discretionary Review Granted Feb. 21, 2001.

      Cliff McCormack, San Marcos, for Appellant.
    Charles R. Kimbrough, Crim. Dist. Atty., Lockhart, for State.
    Before Justices JONES, KIDD and B.A. SMITH.
   ON REMAND

MACK KIDD, Justice.

The State’s motion for rehearing is granted. The opinion and judgment dated July 13, 2000, are withdrawn.

Edie Dione Martin applied for a writ of habeas corpus seeking the dismissal of a forgery prosecution on the ground that she was not timely indicted. The district court issued the writ but denied the relief sought after a hearing. This Court affirmed the district court’s order. See Ex parte Martin, 956 S.W.2d 843 (Tex.App.—Austin 1997). On Martin’s petition for discretionary review, the court of criminal appeals vacated our judgment and remanded the appeal to us for further proceedings. See Ex parte Martin, 6 S.W.3d 524 (Tex.Crim.App.1999).

At issue is the application of code of criminal procedure article 32.01, as originally enacted. See Texas Code of Criminal Procedure, 59th Leg., R.S., ch. 722, § 1, art. 32.01, 1965 Tex. Gen. Laws 317, 441 (Tex.Code Crim. Proc. Ann. art. 32.01, since amended). That statute provided:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant at the next term of the court which is held after his commitment or admission to bail.

The court of criminal appeals held that the test for good cause to continue a prosecution should be patterned after that used to determine whether the constitutional speedy trial right has been violated. See Martin, 6 S.W.3d at 528; see also Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). “The habeas court should consider, among other things, the length of the delay, the State’s reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused.” Martin, 6 S.W.3d at 528. “Another relevant inquiry is whether the grand jury has voted not to present an indictment.” Id. Whether good cause is shown is “a fact-intensive situation [that] calls for a balancing of the interests served by the rule and the interests of the parties.” Id. at 529. When the facts are undisputed, the habeas court’s finding of good cause is subject to review de novo. See id. at 526; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

Because neither the parties nor the district court had the benefit of the court of criminal appeals’ opinion at the original habeas corpus hearing, we abated the appeal and remanded the cause to the district court for rehearing. Following the hearing, the court once again denied relief. The record from the new hearing is now before us, as are the parties’ supplemental briefs.

In its motion for rehearing, the State urges that Martin’s claim is moot because she was indicted before the original hearing on her habeas corpus application. The State points out that article 32.01 does not apply once an indictment is returned. See Tatum v. State, 505 S.W.2d 548, 550 (Tex.Crim.App.1974); see also Brooks v. State, 990 S.W.2d 278, 285 (Tex.Crim.App.1999) (reaffirming Tatum); Ex parte Crowder, 959 S.W.2d 732, 733 (Tex.App.—Austin 1998, pet. ref'd) (following Tatum). In each of the cited cases, however, the defendant attempted to invoke article 32.01 after indictment. Martin, on the other hand, filed her habeas corpus application before she was indicted, when article 32.01 was fully applicable. Therefore, the subsequent return of an indictment did not defeat Martin’s entitlement to relief.

The State also contends we did not properly apply the balancing test mandated by the court of criminal appeals. The State urges that the balance of the evidence weighs in favor of continuing Martin’s prosecution. We disagree. We therefore repeat our original discussion.

Length of delay. Martin was arrested in June 1996, during the June term of the 22nd Judicial District Court. No indictment was returned during that term or the subsequent September term, thereby invoking the statute. Martin filed her writ application in January 1997, and the hearing was held one month later. A six-count forgery indictment was returned against Martin in February 1997, before the writ hearing.

Reason for delay. The State filed a good cause affidavit stating that the Luling Police Department experienced a clerical labor shortage during the summer of 1996 as a result of budget constraints, and that the forgery offenses alleged against Martin were part of the resulting paperwork backlog. The police reports regarding these offenses were processed and forwarded to the district attorney in December 1996.

At the new hearing, witnesses elaborated on the statements in the affidavit. Suzanne Hochstein, the police department’s sole secretary, resigned in August 1996, although she continued to work on a part-time basis until her replacement was hired in November. She testified that among her other duties, she was responsible for “processing” cases. “I had to take them from the officer’s handwritten notes and type them on our official forms and also type up statements, get statements back to the officer to be signed.... I processed any ... statements, officer’s reports, arrest reports, offense reports.” She testified that a backlog of work had built up prior to her resignation. The former Lul-ing police chief testified, “We were swamped.” The former chief and former city manager also testified to the city’s inability to promptly hire a replacement for Hochstein.

In its opinion, the court of criminal appeals disapproved use of an “exceptional circumstances” test to determine good cause under article 32.01. See Martin, 6 S.W.3d at 527. Even under that test, “backlog, staff shortage, or general negligence [did] not constitute an exceptional circumstance.” State v. Condran, 951 S.W.2d 178, 183 (Tex.App.—Dallas 1997), pet. dism’d, 977 S.W.2d 144 (Tex.Crim.App.1998) (quoting Meshell v. State, 739 S.W.2d 246, 251 (Tex.Crim.App.1987)). “[U]nreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that each case must await its turn.” Barker, 407 U.S. at 538, 92 S.Ct. 2182 (White, J., concurring).

State’s diligence. There is no evidence that the State ignored or overlooked Martin’s case. To the contrary, the witnesses testified that the police department attempted to process its cases and refer them to the district attorney as promptly as possible, and that there had been no deliberate effort to delay this or any other case.

The State’s good faith “is arguably a component of good cause, but good faith is not the equivalent of good cause.... We think that article 32.01 requires that the State show more than good faith.” Martin, 6 S.W.3d at 527.

Harm to accused. Martin presented no evidence of harm resulting from the delay in returning an indictment. On this record, the only harm suffered by Martin was an additional two to three months of uncertainty while waiting for grand jury action.

Prior grand jury action. Martin was indicted by the first grand jury to whom her case was presented. She was never no-billed.

Balancing of interests. We must balance Martin’s right to prompt consideration by the grand jury against the State’s interest in prosecuting those who violate the criminal laws because under the law applicable in this cause, dismissal pursuant to article 32.01 bars any further prosecution for the discharged offenses. See Act of June 1, 1987, 70th Leg., R.S., ch. 383, § 1, 1987 Tex. Gen. Laws 1885 (Tex.Code Crim. Proc. Ann. art. 28.061, since amended).

Martin’s case was presented to a grand jury just over two months after the deadline set by article 32.01, and that grand jury returned an indictment. While Martin may have experienced some amount of additional anxiety as a result of the delay in grand jury action, there is no evidence that Martin was otherwise prejudiced. On the other hand, the State’s failure to present Martin’s case to the grand jury in a timely fashion was primarily the result of understaffing at the police department. The government must bear responsibility for failing to provide adequate resources to law-enforcement agencies. Martin could not be expected to suffer an indefinite delay of her case because the police department was without a secretary. While Martin’s case was not deliberately delayed by the police or the prosecutor, an absence of bad faith is not alone sufficient to show good cause. See Martin, 6 S.W.3d at 527. Having reviewed the record de novo, we conclude that good cause was not shown to continue Martin’s prosecution.

The order denying habeas corpus relief is reversed and the indictment is ordered dismissed.

      . In this and other article 32.01 cases, this Court reviewed the trial court’s decision for an abuse of discretion. See Martin, 956 S.W.2d at 845; Ex parte Mallares, 953 S.W.2d 759, 764-65 (Tex.App.—Austin 1997, no pet.). We relied on DuBose v. State, 915 S.W.2d 493, 497-98 (Tex.Crim.App.1996), which was overruled in Guzman. See 955 S.W.2d at 90.

      . The terms of the 22nd Judicial District Court in Caldwell County begin on the first Mondays of March, June, September, and December. See Tex. Gov't Code Ann. § 24.123(c)(1) (West 1988).

      . The court of criminal appeals identified this Court as one of the courts of appeals applying a good faith test for good cause. See Martin, 6 S.W.3d at 527. It is true that an absence of bad faith on the part of the State was one factor we considered in applying article 32.01. See Martin, 956 S.W.2d at 845; Mallares, 953 S.W.2d at 763. At least as important to the result reached in our opinions, however, was our use of an abuse of discretion standard of review. See supra, n. 1.


author: HADDEN, Justice.

text:
    Aaron THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 12-99-00319-CR.
    Court of Appeals of Texas, Tyler.
    Nov. 8, 2000.

      Philip C. Fletcher, Palestine, for appellant.
    Douglas F. Lowe, Palestine, for appel-lee.
    Panel consists of DAVIS, C. J., HADDEN, J., and WORTHEN, J.
   HADDEN, Justice.

Aaron Thompson, Appellant, was charged with aggravated assault on a public servant. After a trial by jury, he was found guilty and assessed punishment at ten years of imprisonment. On appeal, Appellant raises five issues for our consideration. We affirm.

Background

The evidence at trial showed that on the night of September 20,1997, Appellant and his former girl friend, Linda Brasher (“Brasher”), happened to be at the same night club in Palestine, Texas. They spent some time together dancing and drinking at the club. Brasher went home around 11:30 p.m. A few minutes later, Appellant, although uninvited, went to Brasher’s home and tried to make love to her. Brasher told Appellant that he should leave because her new boyfriend, Clinton Musick (“Musick”), was on his way over to her house. Appellant went out to his vehicle and returned armed with a sawed off shotgun and a pistol. Appellant “pumped” the shotgun and stated that he would kill Musick if he came to Brasher’s house. Brasher telephoned Musick and warned him not to come to her house. Musick reported the situation to the police, and officers were dispatched to the scene. Brasher told Appellant that the police were on their way and Appellant replied, “I’ll shoot them too.” However, Appellant left Brasher’s house and drove away.

When the police arrived at Brasher’s house, she described Appellant’s threats to kill Musick and the police. A police radio dispatch was sent out for Appellant which also warned officers that Appellant was armed. Three officers responded. Anderson County deputy sheriff, Brian Daniels (“Daniels”), located Appellant’s vehicle, followed him in his police vehicle into a rural residential driveway, and observed Appellant’s vehicle disappear into a wooded area. Daniels then saw Appellant come out of the woods holding a shotgun. Appellant began walking down the driveway toward Officer Daniels who then backed out of the driveway onto the main road. By loudspeaker, Daniels identified himself as a deputy sheriff, instructed Appellant to put his weapon down and to lie down on the ground. Daniels gave these instructions twice but Appellant did not comply. During this time, Daniels had put his spotlight and takedown lights on Appellant which illuminated the area.

Constable Larry Bennett (“Bennett”) and Deputy Sheriff Kraig Betterton (“Bet-terton”) then arrived on the scene each in separate, police vehicles. Bennett and Betterton also spotlighted and put their takedown lights on Appellant. Bennett, standing behind his vehicle, identified himself to Appellant by loudspeaker and instructed him three to five times to put his weapon down. Appellant was personally acquainted with Bennett and responded by telling Bennett, “Larry get out of here. Get out. It’s none of your business.” Appellant then approached Bennett’s vehicle with his shotgun raised and pointed it at Bennett. When he was 25 to 30 yards away, he took an anchor stance and fired the shotgun in the direction of Bennett. The officers returned fire at Appellant. Appellant fell to the ground and crawled backwards still holding the shotgun. Appellant then turned around, raised the shotgun while up on his elbows, and fired the shotgun again toward Bennett. The officers again returned fire and this time a round hit Appellant. The officers approached Appellant, moved the shotgun away, and took him into custody. A loaded pistol was found in Appellant’s back pocket.

Sufficiency of the Evidence

In issues three and four, Appellant asserts that the evidence was legally and factually insufficient to support a verdict of guilty for the offense of Aggravated Assault on a Public Servant. We will address these two issues together. The standard for reviewing the legal sufficiency of the evidence is “whether, after reviewing the evidence in the light most favorable to prosecution, 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, 99 S.Ct. 2781, 2789, 61 L.E.2d 560 (1979). An appellate court should uphold the jury’s verdict “unless it is found to be irrational or unsupported by more that a mere modicum of evidence.” Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). AH conflicts in the evidence should be resolved in favor on the verdict, and every reasonable inference indulged. Sneed v. State, 803 S.W.2d 833, 837 (Tex.App.—Dallas 1991, pet. ref'd). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given the testimony of each witness. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981).

Once an appellate court has determined that the evidence is legally sufficient to support the verdict, the court must then proceed to review the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126,133 (Tex.Crim.App.1996). In conducting a factual sufficiency review, the appellate court must view all of the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 135; Bigby v.State, 892 S.W.2d 864, 875 (Tex.Crim.App.1994). However, this court must not substitute its judgment for that of the jury. Van Zandt v. State, 932 S.W.2d 88, 96 (Tex.App.—El Paso 1996, pet. ref'd).

A defendant commits assault when he intentionally or knowingly threatens another with imminent bodily injury. Tex. Pen.Code Ann. § 22.01(a) (Vernon 1994). Aggravated assault occurs if, in the course of committing assault, the defendant “uses or exhibits a deadly weapon during the commission of the assault.” Tex. Pen.Code Ann. § 22.02 (Vernon 1994). An offense under section section 22.02 is a first degree felony if the offense if committed against a person the defendant “knows is a public servant while the public servant is lawfully discharging an official duty....” Id.; Cantu v. State, 953 S.W.2d 772, 775 (Tex.App.—Corpus Christi 1997, pet. ref'd). The actor is presumed to have known the person assaulted was a public servant if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant. Tex. Pen. Code Ann. § 22.02(c) (Vernon 1994).

The evidence is uncontroverted that Bennett was a public servant and was lawfully discharging an official duty at the time of the incident. Also, the trial court entered a finding that Appellant used or exhibited a deadly weapon. Appellant contends, however, that the State has presented no evidence, and alternately factually insufficient evidence, showing that Appellant threatened Bennett with imminent bodily harm. He argues that the evidence shows that the shotgun was not pointed in the direction of Bennett and that there were no shotgun pellet marks on Bennett’s vehicle. It is true that there is some evidence that at times during the standoff Appellant held the gun at “parade rest” pointing it up into the air and that at times he held it down pointing it into the ground. Also, a subsequent investigation of the incident revealed no shotgun pellet marks on Bennett’s vehicle. However, the record contains ample evidence that Appellant threatened Bennett with bodily harm. At Bracher’s home, Appellant stated that he “would shoot them too” referring to the police who had been called. At the scene of the incident, Appellant, armed with a shotgun with a sawed-off stock and shortened gun barrel, walked out of a wooded area towards Bennett. He did not comply with official instructions to put down his weapon and lie on the ground. Rather, he fired his shotgun at the officer twice. Officers Betterton and Daniels both testified that when Appellant fired the shotgun, it was pointed in the direction of Bennett. Moreover, the jury had before it some evidence that when Appellant fired at Bennett, he simply missed. A forensics expert explained that the short, 19 inch barrel of the shotgun reduced the effectiveness of the aim and that the spread of the 8 shot shell at 60 feet would only be from 20 to 40 inches in diameter. We also note that the evidence showed that Appellant had been drinking immediately prior to the incident. Furthermore, Bennett testified that he was in fear of bodily injury because of Appellant’s conduct with the shotgun.

Appellant also contends that there was no evidence proving that Appellant knew that Bennett was a public servant. Again, the record reveals the contrary. All three officers at the scene were wearing uniforms and badges of office. Each was driving marked patrol vehicles and had pointed his spotlight and takedown lights on Appellant. The officers identified themselves to Appellant by loudspeakers and instructed him to drop his weapon and get on the ground. The evidence showed that Appellant and Bennett had personally known each other since high school days and that Bennett reminded Appellant over the loudspeaker that he was a constable.

We have reviewed the evidence in the light most favorable to the prosecution, and conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, we have reviewed all of the evidence impartially and conclude that the jury verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, the evidence is legally and factually sufficient. Appellant’s issues three and four are overruled.

Appellant's Membership in the Republic of Texas

In issue one, Appellant asserts that the court abused its discretion by allowing testimony that Appellant was a member of the Republic of Texas and testimony relative to the organization’s reputation. During the punishment phase of the trial, Brasher testified, over Appellant’s objection, that Appellant was a member of the Republic of Texas organization. The State then presented two witnesses who gave testimony as to the reputation of the Republic of Texas, again over the objection of Appellant. Anderson County Deputy Sheriff Greg Taylor testified that the Republic of Texas had a reputation as being a violent, anti-government organization intent upon overthrowing the government. He stated that it does not recognize the government of the State of Texas or the federal government. He testified that he gained this knowledge from his experience in law enforcement and through working with law enforcement agencies such as the Bureau of Alcohol, Tobacco, and Firearms, and the Texas Department of Public Safety’s intelligence department. Texas Ranger Steve Foster similarly testified that the Republic of Texas had a reputation as an anti-government organization that stockpiled weapons, ammunition, food and water with the goal of overtaking and reclaiming the State of Texas.

Appellant contends that the introduction of this evidence was prohibited by the First Amendment of the U.S. Constitution which protects an individual’s right to join groups and associate with others holding similar beliefs. He asserts that in sentencing, it is constitutionally forbidden to consider any evidence concerning such beliefs and activities. It is true that the First Amendment protects an individual’s right to join groups and associate with others holding similar beliefs. Dawson v. Delaware, 503 U.S. 159, 163, 112 S.Ct. 1093, 1096, 117 L.Ed.2d 309 (1992). However, the constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing merely because those beliefs and associations are protected by the First Amendment. Id. at 163-67, 112 S.Ct. at 1097-98. Such evidence may be admissible if it is shown to be relevant to the issues involved in the case. Id. Thus, the admission of such evidence does not per se violate the First Amendment.

Alternatively, Appellant argues that even if such evidence was admissible, the State failed to show its relevance. We disagree. The jury is concerned at the punishment phase hearing with evaluating a defendant’s background and character independent of the commission of the crime on trial. Sparkman v. State, 580 S.W.2d 358, 360 (Tex.Crim.App. [Panel Op.] 1979); Ybarra v. State, 775 S.W.2d 409, 411 (Tex.App.—Waco 1989, no pet.). In following this view, the Texas Code of Criminal Procedure provides, in pertinent part, as follows:

[EJvidenee may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried....

Tex.Crim. PROC.Code Ann. art. 37.07, § 3(a) (Vernon Supp.2000).

Moreover, the Texas Court of Criminal Appeals has recognized that where the defendant is charged with an act of violence, as in the instant case, membership in an organization with a reputation for violent activities is relevant evidence because it relates to his character and is therefore admissible. Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App.1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App.1995). The State argues that, although the organizations of which the defendants were members in these two cases were “gangs,” the principles laid down in Beasley and Anderson are applicable here. We agree. If the defendant’s membership in an organization and the organization’s reputation give the jury valuable information regarding the character of the defendant, such information should be allowed into evidence. Ybarra, 775 S.W.2d at 411. As Judge Mansfield pointed out in his concurring opinion in Anderson, “[i]t is beyond dispute that evidence of an individual’s membership in the Boy Scouts, Rotary Club, or the Shriners is admissible at the punishment stage as evidence of good character. A plain reading of Article 37.07 leads to the conclusion that membership in organizations dedicated primarily to illegal aims ... is admissible at punishment as evidence of bad character.” Anderson, 901 S.W.2d at 952 (Mansfield, J., concurring). Thus, evidence of a defendant’s membership in an organization and that organization’s activities is admissible because it is relevant to the issue of a defendant’s character.

In order to prove the relevance of a defendant’s membership in an organization or group, the State must show (1) proof of the group’s violent and illegal activities, and (2) the defendant’s membership in the organization. Mason v. State, 905 S.W.2d 570, 577 (Tex.Crim.App.1995). In the instant case, the State has presented both. Appellant’s former girlfriend, Brasher, testified that he was a member of that Republic of Texas, and Appellant admitted during his testimony that he had been a member of that organization. Moreover, two law enforcement officers testified that the organization had a reputation for violent and illegal activities. They stated that it was an anti-government organization intent on overthrowing the government and which stockpiled weapons, ammunition, food, and water for that purpose.

Appellant also argues that under Texas Rule of Evidence 403, the prejudicial effect of the evidence of membership greatly outweighed its probative value. Because the trial court did not accept that argument, we may presume that the court did a rule 403 balancing test, which need not be announced from the record. Nolen v. State, 872 S.W.2d 807, 812 (Tex.App.—Fort Worth 1994, pet. denied). “Almost every piece of evidence presented at trial can be said to be prejudicial to one side or the other. Only evidence that is unfairly prejudicial must be excluded under Rule 403.” Miller v. State, 2 S.W.3d 475, 482 (Tex.App.—Tyler 1999, no pet.). The State presented evidence that Appellant engaged in violent activity by carrying the loaded shotgun and pistol and shooting toward one of the officers. Under these circumstances, it was not unfair to admit evidence that he was also a member of an organization that stockpiles weapons for violent purposes. For these reasons, we hold that the trial court did not abuse its discretion, and thus, did not err in admitting into evidence Appellant’s membership in the Republic of Texas and the reputation of that organization. Issue one is overruled.

Motion for Mistrial

In issue two, Appellant asserts that the trial court abused its discretion in denying his Motion for Mistrial because unfairly prejudicial evidence was presented before the jury. Before the punishment phase of the trial, Ranger Foster testified, outside the presence of the jury, that he had spent eleven or twelve days at Fort Davis on the ordeal involving the Republic of Texas at that location. The judge announced that he was going to admit evidence that Appellant was a member of the Republic of Texas, as well as evidence as to its activities generally. However, the judge also announced that he did not want the attorneys to go into specific instances of the organization’s conduct, presumably such as “Fort Davis.” Later, during the district attorney’s direct examination of Ranger Foster before the jury, the following testimony took place:

Q. All right. Ranger, can you generally describe for us the activities of the organization known as the Republic of Texas?
A. It’s my belief that the Republic of Texas is an organization whose design is to overtake the state of Texas, to make it a sovereign state on its own.
Q. All right. And in order to do that, generally, what activities do they undertake?
A. They usually have organizational meetings, for instance the Fort Davis
Mr. Hicks [defense attorney]: Your Honor, I’m going to object. That’s outside your parameters.

The trial judge sustained the objection, and at the request of Appellant, instructed the jury to disregard the statement. Although Appellant’s point could be dismissed for inadequate briefing under Tex.R.App. P. 38.1(h), we will address his point in the interest of justice. Whenever a trial court instructs the jury to disregard an improper comment, it is presumed that the jury will follow the court’s instruction unless the remark or comment was so prejudicial or extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Calderon v. State, 847 S.W.2d 377, 380 (Tex.App.—El Paso 1993, pet. ref'd). Foster’s comment referred only to the location of an unspecified incident. He provided no details as to the organization’s activities at Fort Davis. Accordingly, we conclude that the complained of testimony was not so prejudicial or extreme that the instruction was incapable of removing any harm. We overrule issue two.

Deadly Weapon Finding

In issue five, Appellant asserts that the trial court erred in entering an affirmative finding in the judgment that Appellant used or exhibited a deadly weapon during the commission of the offense. He contends that since the jury, which was the trier of fact, did not make an affirmative finding that he used or exhibited a deadly weapon, the judge had no authority to make such a finding. The existence of such an affirmative finding affects Appellant’s eligibility for community supervision and parole, and therefore, he seeks reformation of the judgment. The State contends that in light of the indictment, jury charge, and testimony, it was appropriate as a matter of law for the trial court to enter the affirmative finding because the shotgun used was a deadly weapon per se. Thus, the question is whether the trial judge was authorized under the circumstances of this case to enter an affirmative finding that Appellant used or exhibited a deadly weapon.

Where the jury is the trier of fact, the trial court may properly enter that they have made an affirmative finding concerning the defendant’s use or exhibition of a deadly weapon or firearm during the commission of the offense if the weapon pleaded is per se a deadly weapon or a firearm. Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App.1985). A firearm is by definition a deadly weapon. Tex. Pen.Code Ann. § 1.07(17)(A) (Vernon 1994). A shotgun is a firearm and thus a deadly weapon. Garcia v. State, 819 S.W.2d 634, 636 (Tex.App.—Corpus Christi 1991, no pet.). In the instant case, the indictment alleged that Appellant “... did then and there use and exhibit a deadly weapon, to wit: a firearm ...” The jury charge defines a deadly weapon as a firearm. The jury charge also instructs the jury that “a person commits the offense of aggravated assault ... if he ... commits the offense of assault ... and he uses or exhibits a deadly weapon during the commission of the assault.” The jury found the Appellant “guilty of the offense of aggravated assault on a public servant.” Thus, the jury necessarily found that Appellant used a firearm, a deadly weapon, as alleged in the indictment. Under these circumstances, we hold that the trial court was authorized to enter an affirmative finding that Appellant used or exhibited a deadly weapon. Issue five is overruled.

The judgment of the trial court is affirmed.


author: NORMAN LEE, Justice (Assigned).

text:
    Mark GREEN et ux. Jean Green, Appellants, v. Colleen CANON, Appellee.
    No. 14-98-00983-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 2000.
    Rehearing Overruled Jan. 11, 2001.

      Christopher B. Allen, Houston, Preston C. Goodwin, The Woodlands, for appellants.
    Gary L. Crofford, Houston, for appel-lees.

      Panel consists of Justices CANNON, DRAUGHN, and LEE.

       Senior Justices Bill Cannon, Joe L. Draughn and Norman Lee sitting by assignment.

   OPINION

NORMAN LEE, Justice (Assigned).

Mark Green and his wife, Jean Green, appeal from a summary judgment granted in a forcible entry and detainer action brought by Mark Green’s mother, Colleen Canon. In two points of error the Greens argue the trial court erred in affirming summary judgment for appellee because (1) a letter written by appellee was a gift or, in the alternative, a contract for future conveyance of property, and (2) the trial court lacked jurisdiction. We affirm.

At issue is ownership of a Friendswood house which appellee purchased with her husband, Donald C. Green. Donald Green died in 1974, and title passed to appellee. When she remarried in 1979, appellee moved and allowed Mark Green, who was then nineteen, to live in the house on the condition that he keep up the property taxes, maintenance and utilities. Mark Green married and started a family of his own.

Meanwhile, appellee’s health, financial situation, and marriage deteriorated. In 1997, she asked Mark and Jean Green to vacate the house so she could live there. They refused, so appellee filed a forcible entry and detainer action in a Galveston County justice court. Appellants contested title, claiming the house under a letter written by appellee, in which she offered to give them the house so they could save on property taxes. The justice court found for appellee, who then brought suit in the district court to clear any cloud to the title. Appellants again sought to assert the 1990 letter as a defense, claiming that the letter was either a deed or a contract to convey, and claiming adverse possession under color of title. The district court granted summary judgment to appellee, prompting this appeal.

SUMMARY JUDGMENT

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549. A defendant who conclusively negates at least one of the essential elements of each of the plaintiffs causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). If the trial court does not specify a ground on which summary judgment was granted, we will affirm if any of the grounds asserted by the movant are meritorious. Rogers v. Ricane Enters., 772 S.W.2d 76, 79 (Tex.1989).

The crux of the question before us is the legal effect of the aforementioned letter. That letter states, in pertinent part (all emphasis, spelling and punctuation as in the original):

It is ridiculous that you all have to pay those high taxes on that house when you could be getting a Homestead Exemption. I will never move back in that house and as far as I am concerned it belongs to you both. If God Forbid something should happen to both Mark and Me — then I don’t know where that would leave Jeannie as far as Mike & David are concerned, (as my will is written now). I want Jeannie to have the house — she and my Grandchildren. The trouble is I can’t do a thing about this. J.T. would have a fit especially in the situation we are in now. I don’t want to sell you the house I want to give it to you. But to make it appear nothing has changed around here — if you could just give me a few bucks along it would cut down on my crap I catch here. (I don’t mean more than what you have been doing.) ... So anything helps just don’t take from my grandbabies to bring money here. They come first.
Now as to how you do this. When— (as soon as you can) go to an attorney tell him what we want to do — Do Not let him call here for anything — don’t even give him the telephone number or anything. He will know how to draw up the papers and of course I will have to sign them. When we get to that — point I will think of some reason why I have to come there....
I know attorney’s cost money and this will take time — but can you all be getting this started as soon as possible? It might be a good idea to go to a Realtor and ask what all is involved you may get some free information that way.
I believe you have the housepapers don’t you? If not let me know and I will figure out a way to get them to you. If you need a legal description to get things started you can get that from the tax office. I know its to late to do anything about 89’s taxes but if we get started as soon as you can, maybe you can declare it your homestead for 1990!
Think about it! Put it on your list of things to do and make your future more secure and save some money!
I love you
Mom

Appellants contend this letter constitutes either a contract to convey the property or a deed, and that delivery of the letter completed a gift. We can dispense with the first contention quickly. Appellee wrote in the instrument that “I don’t want to sell you the house I want to give it to you.” The letter therefore cannot be a contract to convey unless it is a deed which is ineffectual to pass title but which acknowledges receipt of valuable consideration. Magee v. Young, 145 Tex. 485, 198 S.W.2d 883, 886 (1946). Because the letter does not acknowledge receipt of valuable consideration, it is not a contract to convey. Id.

Next we must consider whether the letter constitutes a deed. This is crucial because the only method of concurrently giving an estate in land and of perfecting the gift is by executing a deed conveying the property to the donee. 41 Tex. Jur 3d Gifts § 31 (1998) (citing Wooldridge v. Hancock, 70 Tex. 18, 6 S.W. 818 (1888)). The burden of proving a gift of real property is on the party claiming the gift was made. Woodworth v. Cortez, 660 S.W.2d 561 (Tex.App.—San Antonio1983, writ ref'd n.r.e.). In determining whether a gift was intended by execution of a deed, we look to all the facts and circumstances surrounding its execution in addition to the language of the instrument. Haile v. Holtzclaw, 414 S.W.2d 916, 927 (Tex.1967).

By statute, a deed must be in writing and must be subscribed or delivered by the conveyor or the conveyor’s agent. Tex. Prop.Code Ann. § 5.021 (Vernon 1984). There is no longer a requirement, as there was at common law, that a deed or instrument to effect conveyance of real property have all the formal parts of a deed formerly recognized at common law or contain technical words. If from the whole insti'ument a grantor and grantee can be ascertained, and there are operative words or words of grant showing an intention by the grantor to convey title to a real property interest (which is sufficiently described) to the grantee, and is signed and acknowledged by the grantor it is a deed which accomplishes a legally effective conveyance. Atlantic Richfield Co. v. Exxon Corp., 663 S.W.2d 858, 867 (Tex.App.—Houston [14th Dist.] 1983), rev’d in part on other grounds, 678 S.W.2d 944 (Tex.1984).

We find that this letter is insufficient to constitute a deed, for two reasons. First, the language of the instrument clearly contemplates future action, instructing appellants to call a lawyer and urging them to “get started as soon as you can” so they can benefit from a homestead exemption. This is not language which contemplates a completed gift. Secondly, a grantee cannot be ascertained with certainty from the face of the instrument. In the letter, appellee indicates she wants to give the property either to the community of Mark and Jean Green or, because she is uncertain as to what would happen if both she and Mark were to die, to Jean Green and her grandchildren. An attempted gift to the community would result in a tenancy in common between Mark and Jean Green. See Bradley v. Love, 60 Tex. 472 (1883); Roosth v. Roosth, 889 S.W.2d 445, 456 (Tex.App.—Houston [14th Dist.] 1994, writ denied). A gift to Jean Green and her children, however, would not. This detail, which would be vital if this letter were meant to be a deed, is instead treated as something that can be straightened out after the lawyer gets to work. We find the trial court correctly determined that this letter and its surrounding circumstances evidence an intent to make a gift in the future rather than a completed gift. Therefore summary judgment for appellee was proper.

JURISDICTION

In his second point of error appellants contends the probate court erred in not dismissing the prior action, rather than transferring it to the district court while this ease was pending.

We agree that the justice of the peace court should have dismissed the forcible entry and detainer action when it became apparent that title was at issue. However, this does not affect the district court judgment.

A litigant may pursue a forcible entry and detainer action in the justice court while simultaneously pursuing her other remedies in another court. Haith v. Drake, 596 S.W.2d 194, 196 (Tex.App.—Houston [1 Dist.] 1980, writ ref'd n.r.e.). “An eviction suit does not bar suit for trespass, waste, damages, rent or mensne profits.” Tex. PROp.Code Ann. § 24.008 (Vernon Supp.2000). Courts have interpreted this section to mean that an action for eviction is not exclusive, but cumulative of any other remedy a party may have in other state courts. See, e.g., Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307, 309 (1935); Martinez v. Daccarett, 865 S.W.2d 161, 163 (Tex.App.—Corpus Christi 1993, no writ).

Thus appellants essentially must argue that the district court was divested of jurisdiction by the transfer and consolidation of the forcible entry and detainer case. We disagree. A trial court does not lose jurisdiction of a cause because of its decision to consolidate cases. See Montgomery v. Willbanks, 202 S.W.2d 851, 853 (Tex.Civ.App.—Fort Worth 1947, writ ref'd). We conclude that the district court’s judgment should not be affected by the justice court’s error.

The judgment of the trial court is affirmed.

      . The forcible entry and detainer case and the district court case were ordered consolidated after the hearing on the motion for summary judgment but before judgment was rendered.