Daniel Carl Greeley v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



ON MOTION FOR REHEARING

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NO. 03-98-00007-CR

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Daniel Carl Greeley, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 973133, HONORABLE BOB PERKINS, JUDGE PRESIDING

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The opinion and judgment issued herein on March 2, 2000 are withdrawn, and the following opinion is substituted for the earlier one.

Appellant Daniel Carl Greeley was convicted of capital murder for intentionally causing the death of Bruce Becker in the course of committing robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1), .03(a)(2) (West 1994). Greeley defended the charge on the grounds that he acted in self-defense or sudden passion and did not intend to kill Becker. In twenty-one points of error Greeley appeals his conviction. We will affirm.

BACKGROUND

Appellant Daniel Carl Greeley first met the victim, Bruce Becker, in May 1995. Becker approached Greeley on Sixth Street in Austin, Texas, and engaged Greeley in conversation. The two spoke for twenty to thirty minutes as they walked along the street. A week later Becker approached Greeley on Guadalupe Street (the "Drag"), and the two conversed briefly. Becker invited Greeley, who was living out of his car, to come to Becker's home. Greeley accepted and ended up spending the night. Greeley testified that the evening was uneventful. The next morning Becker returned Greeley to his car. That night Becker saw Greeley at an Austin night club and invited him to spend the night. Greeley accepted. Greeley testified that between three and four o'clock the next morning he awoke to the sounds of Becker slamming kitchen cupboards. Greeley stated that Becker was drunk and crying about an ex-boyfriend and came into the room where Greeley was sleeping on the couch. Becker then removed all of his clothing and lay down nude in the middle of the floor. Greeley said that the situation made him uncomfortable and that he left the house and walked back to downtown Austin.

Greeley testified that he had no further contact with Becker until May or June 1996, when the two saw each other in the cafeteria of the Internal Revenue Service (IRS). Becker had been employed at the IRS for a number of years, and Greeley was working there temporarily. Becker engaged Greeley in conversation, gave Greeley his telephone number and address, and invited Greeley to his home to stay or do laundry. Greeley, who was living on the streets, went to Becker's house and did laundry once in June. Greeley testified that he called Becker again on July 13, 1996, and asked if he could come over to do laundry and get out of the heat. A third man was also present at Becker's house, and the three stayed up all night. Greeley testified that he was aware that Becker was homosexual and that at one point in the evening Becker put his arm on Greeley. Greeley said that the action caused him to be in "a little bit of shock" but that Greeley did not interpret Becker's action to be a sexual overture.

The next day Becker dropped the third man off in downtown Austin and invited Greeley to return to Becker's house. Greeley testified that he accepted the offer because he wanted to see a movie Becker was going to rent but that they had an understanding Greeley would not be spending the night. The two men went to the Central Market grocery store to get food for dinner and ran into Becker's co-worker. The co-worker identified Greeley in a photographic lineup and at trial, testifying that she had been struck by the "expressionless" look on Greeley's face. After leaving Central Market, the two men rented the movie and returned to Becker's home. Greeley testified that Becker was drinking bourbon and that the two sat together on the sofa, ate dinner, and watched television. Greeley stated that Becker began massaging Greeley's neck and suggested that the two go up to bed.

The evidence regarding what happened next is sharply conflicting. Three witnesses testified as to what Greeley related to them and presented the jury with four different versions of events. In addition, Greeley testified and presented the jury with a fifth version. ⁽¹⁾ Although the stories vary in detail, by all accounts Greeley bludgeoned Becker repeatedly in the head with a metal bar and stabbed him in the neck with a knife, killing him.

Greeley then took Becker's keys out of his pocket, put Becker's body into a footlocker, and attempted to clean up the room. Greeley drove to the Drag in Becker's car and found Johnny Ooten, a man he had met while living on the streets. Greeley told Ooten that he had killed Becker, and the two returned to Becker's house and made further attempts to remove evidence. Greeley asked Ooten to help clean up the house and gave Ooten cleaning solution and towels that Ooten used to clean the banister, the upstairs, and the bathroom. The two men put the footlocker containing Becker's body in the trunk of Becker's car and loaded several boxes of Becker's belongings and a small safe ⁽²⁾ into the vehicle. Greeley gave Ooten one of Becker's credit cards and a personal identification number, and they drove to an Albertson's grocery store where Ooten attempted to get money using the card. ⁽³⁾ After that attempt failed, the two drove to the Drag, where Ooten made three additional attempts to use the card. At some point, Greeley gave Ooten a shoe box containing baseball cards they had taken from Becker's house and drove to a shop on the Drag where Ooten sold the cards and gave the money to Greeley.

Greeley and Ooten then drove to the Texas panhandle and buried Becker's body and some of his personal items near a picnic area or rest stop. After burying the body, the two men went to a local Wal-Mart where Ooten made yet another attempt to use one of Becker's credit cards. Ooten testified that at some point after removing the body, Greeley emptied the car's trunk, removed the trunk's liner, stabbed holes in the bottom of the trunk with a screwdriver, and sprayed the trunk out with water. Ooten testified that the two men had originally planned to leave the state but instead decided to return to Austin.

A few days after Greeley's and Ooten's return, an Austin police officer approached Ooten on the Drag and asked him to come to the station and answer some questions. Ooten agreed and was interviewed for several hours. The interview, which was videotaped, produced two somewhat contradictory written statements, neither of which is in evidence. ⁽⁴⁾ The police flew with Ooten to Amarillo and from there drove to the rest stop where the men had buried Becker's body.

After leaving Ooten in Austin, Greeley made his way to Utah where he had lived in early 1996. Keith Lee was living with Greeley's former roommate, Karra Urry, in Utah. Lee testified that Greeley arrived at the Utah apartment on or about July 20. Lee, Urry, and Greeley all indicated in their testimony that while staying at the apartment, Greeley used Becker's credit cards to buy things that he would then sell. Lee testified that Greeley and Urry went to Texas in late July or early August to get money. According to bank records, Greeley went to a Dallas bank and cashed an eight-hundred-dollar check dated July 27, 1996, drawn on Becker's account and payable to Greeley.

At the request of the Austin Police Department, Utah police kept surveillance on the apartment where Greeley was staying with Lee and Urry. On or about August 1, while Greeley and Urry were in Texas, Utah police officer Keith Stephens went to the apartment where Lee admitted him. Lee gave Stephens permission to look around the common areas of the apartment and Lee's bedroom. At that time Stephens saw a safe sitting on the patio of the apartment. The safe matched the description of the one that Austin police had listed as missing from Becker's house. Stephens obtained a search warrant for the apartment and executed it that day or the day following.

In searching the Utah apartment, police found several items that were admitted at trial, including two partially completed applications for a Utah identification card in the name of Bruce Becker, copies of Becker's birth certificate, Becker's social security card, Becker's school records and college degree, several of Becker's credit cards, a receipt from an Austin pawn shop signed by Greeley, and a list in handwriting identified as Greeley's. ⁽⁵⁾

Authorities arrested Greeley in Midvale, Utah and returned him to Austin where he was indicted for both murder and capital murder. Greeley pleaded not guilty before a jury that found him guilty of capital murder. Because the State did not seek the death penalty, Greeley was automatically sentenced to life in prison. See Tex. Penal Code Ann. § 12.31(a) (West 1994); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (West Supp. 2000).

DISCUSSION

In his first and second points of error, Greeley complains that the evidence is legally and factually insufficient to prove he killed Becker in the course of robbing him.

Sufficiency of the Evidence   

To determine the legal sufficiency of the evidence to support a criminal conviction, we view all the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994). We resolve any inconsistencies in the evidence in favor of the verdict. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). This standard of review is the same for both direct and circumstantial evidence. See Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).

When conducting a factual sufficiency review, we do not view the evidence in the light most favorable to the verdict. Instead, we consider all evidence equally, including the testimony of defense witnesses and the existence of alternative hypotheses. See Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). However, we do not substitute our judgment for that of the jury and will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson v. State, No. 1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9, 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Furthermore, we may not reverse a jury's decision simply because we disagree with the result. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Greeley specifically argues that the State failed to prove that he formed the intent to steal before or concurrent with the murder. In support of his contention, Greeley cites us to cases in which the State failed to disprove beyond a reasonable doubt an accused's claim that the robbery was committed to conceal the murder. See Ibanez v. State, 749 S.W.2d 804 (Tex. Crim. App. 1988); Palafox v. State, 608 S.W.2d 177 (Tex. Crim. App. 1979). However, in those cases the State sought to use inculpatory portions of the accused's confession and was thus under a duty to disprove exculpatory portions because of the now-abolished voucher rule. ⁽⁶⁾ See Russeau v. State, 785 S.W.2d 387, 390 (Tex. Crim. App. 1990) (holding that voucher rule was rejected by adoption of rule of evidence 607). Because this case does not involve the State using Greeley's confession against him, the voucher rule would not apply even if it continued in existence, and these cases offer no guidance.

If the State introduces evidence from which the jury could rationally conclude that the accused possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the murder, it has proven that the murder occurred in the course of robbery even though the actual appropriation did not occur until after the murder. See Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim. App. 1999); Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996); Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993); Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992). Greeley contends that the only evidence of a pre-existing intent is Ooten's testimony that Greeley told him prior to the murder that Greeley was going to kill Becker because Greeley believed Becker had hurt people. Greeley further contends that because Ooten testified Greeley did not say he intended to rob Becker, there is no evidence establishing that intent. We disagree. The requisite intent may be inferred from circumstantial evidence as well as from the defendant's conduct. See Maldonado, 998 S.W.2d at 243; Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996); Robertson, 871 S.W.2d at 705.

This record contains ample evidence of Greeley's conduct from which the jury could infer the requisite intent. Greeley admitted taking several items from Becker's home after killing him. Ooten testified that when he and Greeley arrived at Becker's house to clean and conceal the crime, Ooten found boxes Greeley had already packed with a number of Becker's possessions, which the men loaded into the car for their use. After leaving Becker's house, Greeley and Ooten made four attempts to use Becker's credit card to obtain cash and sold some of Becker's property. Thereafter Greeley used Becker's credit cards to buy things to sell for money while in Utah. Various witnesses testified that they received items from Greeley that were later identified as having belonged to the victim. In addition, Greeley admitted having been in Becker's bedroom before the night of the murder and having looked in Becker's closet where Becker kept the safe. Ooten testified that the safe was already in the garage when he arrived, and Utah police later seized this same safe from the apartment where Greeley stayed.

The record also contains evidence suggesting Greeley had a plan before the murder. Greeley was in financial difficulty and living on the streets at the time of the murder. Heather Willard knew Greeley had been trying to find a way to quit living on the streets, and Greeley admitted he thought he could use Becker for this purpose. Willard testified that Greeley drove her by Becker's house in 1995 and spoke admiringly of Becker's wealth, property, and position. Willard also testified that Greeley spoke repeatedly and at length about assuming someone else's identity. Evidence showed that Greeley had a book describing how to assume another person's identity. The State offered into evidence partially completed applications for Utah identification cards which contained Becker's personal information and Greeley's physical description. In addition, Greeley admitted having written a list seized from the Utah apartment that says "safe haven & supplies," "buy and pawn," "work under new identity," "make ID of Bruce," "get rid of all objects," "leave no trace," "new identity Idaho/Montana," and "new life style." Greeley admitted on cross-examination that, "It [the list] does look like a plan."

All evidence favorable to Greeley is controverted. Greeley claimed that he did not form the intent to steal until after he killed Becker and only took things because they had blood on them or because he wanted to pawn them to get money to leave Texas. However, the evidence indicates that Greeley left several items, including books, that had blood on them and took items, including the safe, that did not have blood on them. Greeley remained in Texas for a number of days following the murder and returned to the state to cash a check in Dallas after he had gone to Utah. Greeley claimed he did not notice Becker's safe in his closet until he searched the house following the murder, but he admitted he had been in the bedroom and looked in the closet before that day. Ooten testified that when Greeley brought him to the house, the safe was already in the garage and some of Becker's things had already been packed in boxes. Greeley admitted that he wrote the above-referenced list but claimed he did not do so until a week or more after the murder; the list is undated. The decision on the relative weight to be given contradictory testimony is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. See Cain, 958 S.W.2d at 408-09. A jury is free to believe or disbelieve all or any part of any witness's testimony. See Moore v. State, 935 S.W.2d 124, 126 (Tex. Crim. App. 1996). Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have concluded beyond a reasonable doubt that Greeley formed the intent to kill Becker prior to or concurrent with the murder. See Williams, 937 S.W.2d at 483. Further, we hold that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 129. We overrule Greeley's first and second points of error.

Ooten's Videotaped Statement

In points of error three through six, Greeley contends that the trial court erred by excluding the videotaped interrogation of Ooten. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). Therefore, we will not reverse a trial court as long as its ruling is within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391.

In his third and fourth points of error, Greeley asserts that the trial court's exclusion of the videotapes violated the sixth and fourteenth amendments of the United States Constitution as well as sections ten, thirteen, and nineteen of article one of the Texas Constitution. In his sixth point of error Greeley claims that the trial court erred by overruling his motion for new trial because of arguments made in points of error three through five. However, Greeley did not urge his constitutional complaints in the trial court and has not preserved any such complaint for review. Further, even if Greeley preserved error below, in his brief to this Court, he makes no argument and cites no authority in support of these alleged errors and thus presents this Court with nothing to review. See Tex. R. App. P. 38.1(h); Smith v. State, 907 S.W.2d 522, 531-32 (Tex. Crim. App. 1995). We therefore overrule Greeley's third, fourth, and sixth points of error.

In his fifth point of error, Greeley argues that because the videotapes were necessary to place Ooten's testimony in proper context, the trial court erred in excluding them. Greeley was given unlimited opportunity to cross-examine Ooten. Greeley was able to elicit that the police subjected Ooten to hours of interrogation and that Ooten told many different stories verbally and in writing in the course of the interrogation. Although it is difficult to ascertain from his brief, Greeley seems to argue that he nevertheless has some additional right to admit the videotapes under a sort of "best evidence" argument because only those tapes could establish their content and context to his satisfaction. However, Greeley does not make a "best evidence" claim under rule 1002 ⁽⁷⁾, nor did he make such an argument below. Instead Greeley claims that other rules allow him to admit the tapes to show the context in which Ooten gave his statement. Specifically, Greeley argues that: (1) the State opened the door by admitting parts of Ooten's statement and rule 107 ⁽⁸⁾ required that the defense be allowed to put those parts in context, (2) former criminal evidence rule 610(b) allowed for wide latitude in establishing a witness's credibility, ⁽⁹⁾ (3) the court abused its discretion in excluding the statement under rule 403 because there was no showing of undue delay, ⁽¹⁰⁾ and (4) the exclusion of the evidence harmed Greeley. The State responds by arguing that Greeley did not make these arguments to the trial court and has therefore waived them. See Tex. R. App. P. 33.1 (requiring that complaint state sufficiently specific grounds to bring alleged error to trial court's attention). Although Greeley's trial counsel did not cite specific rules in offering the videotapes, we will address this point of error to the extent that it corresponds to specific arguments Greeley made below.

Greeley's first argument contends that under rule 107, popularly known as the rule of optional completeness, he should have been allowed to introduce the videotapes to place into context portions of Ooten's statement that were introduced by the State. Rule 107 reads in pertinent part: "When part of [a] . . . writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other." Tex R. Evid. 107 (emphasis added).

Evidence that is used to fully explain a matter opened up by the other party need not be otherwise admissible. See Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977). However, the evidence offered for context must be "on the same subject" as the portion already admitted. See Tex. R. Evid. 107; Jernigan v. State, 589 S.W.2d 681, 694-95 (Tex. Crim. App. 1979); Roman v. State, 503 S.W.2d 252, 253 (Tex. Crim. App. 1974).

Greeley made two separate attempts to offer the videotapes at trial, urging that the tapes showing Ooten's interrogation were necessary to place Ooten's testimony in context. During the first discussion of the tapes, Greeley's counsel stated he "probably [would not] show all of it" and "I don't want to show all of it." However, Greeley's counsel did not state the specific portions he sought to admit. And in making his second offer at the close of Greeley's defense, Greeley's trial counsel sought to admit the tapes without qualification. The tapes contain information that is not on the same subject as Ooten's testimony--i.e., the murder of Bruce Becker. Because Greeley's offer was not limited to evidence admissible under rule 107, we cannot say that the trial court abused its discretion in refusing to admit the tapes under rule 107. ⁽¹¹⁾

In his second argument on this point, Greeley contends that the trial court erred in refusing to admit the tapes because they relate to Ooten's credibility and were admissible under former criminal evidence rule 610(b), which stated, "A witness can be cross-examined on any matter relevant to any issue in the case, including credibility." ⁽¹²⁾ Because rule 610(b) concerned the scope of cross-examination and Greeley is not urging this complaint, we fail to see the relevance of this rule. Greeley also contends that under rule 610, "[w]ide latitude should be given on credibility," relying on Gonzales v. State, 929 S.W.2d 546 (Tex. App.--Austin 1996, no pet.). On the contrary, Gonzales discusses criminal evidence rules 608, 609, and 612, but not rule 610. Thus, the authorities Greeley cites do not support his proposition. ⁽¹³⁾

In his third argument, Greeley contends that the trial court abused its discretion by excluding the tapes under rule 403 because their probative value was not outweighed by undue delay. See Tex. R. Evid. 403. The total running time of the two tapes is over eight hours. As noted above, Greeley ultimately sought to admit the tapes in their entirety although he stated that he did not want to show them and only wanted the jury to have them available.

Assuming without deciding that Greeley's request to admit but not show the tapes could preserve error, we evaluate whether Greeley presented the trial court with a viable reason for admitting the tapes. Greeley offered the trial court several arguments as to why the videotapes were admissible. In his initial offer, Greeley contended that the video was admissible as impeachment, as a prior inconsistent statement, as probative of Ooten's credibility, and to establish the context in which the statements were made. In discussing Greeley's second offer, the trial court pointed out that Ooten admitted that his story had changed repeatedly. In response, Greeley stated twice that he was not offering the tapes as impeachment and thus waived any argument that the tapes were admissible on that basis. Greeley's offer also failed to establish the tapes' admissibility as prior inconsistent statements because Ooten had admitted every inconsistency about which Greeley inquired. See Tex. R. Evid. 613 ("If the witness unequivocally admits having made [inconsistent] statements, extrinsic evidence of same shall not be admitted."). In arguing that the tapes established the "context" of Ooten's testimony, Greeley arguably invoked rule 107 and thus preserved the issue for appeal. But as noted above, this argument fails because the offer was not restricted to portions of the tape on the same subject. Finally, because the trial court afforded Greeley extensive cross-examination to establish the circumstances of the interrogation and the fact that Ooten had changed his story, admission of the tapes would have been cumulative. Thus, we hold that the trial court did not act outside the "zone of reasonable disagreement" in excluding the videotapes under rule 403. Because Greeley has failed to show that the trial court abused its discretion by excluding the tapes, we need not address whether the exclusion harmed him. We overrule Greeley's fifth point of error.

Manslaughter charge   

In his seventh point of error, Greeley complains that the trial court erred by refusing his requested jury charge on involuntary manslaughter. Involuntary manslaughter ceased being a separate offense in 1994. See Acts 1993, 73d Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. The court could not err in failing to charge an offense no longer in the Penal Code. Current law prohibits the offense of manslaughter, defined as a reckless killing and the equivalent of involuntary manslaughter under prior law. See Tex. Penal Code Ann. § 19.04 (West 1994).

Two factors must be considered in deciding whether Greeley was entitled to a submission on the lesser included offense of manslaughter. First, the lesser offense (manslaughter) must be included within the greater charged offense (capital murder). Second, there must be some evidence that would permit a rational jury to find that, if the defendant is guilty, he is guilty only of the lesser included offense. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). An issue whether the defendant is guilty only of a lesser included offense is raised if there is more than a scintilla of evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996); Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. Crim. App. 1992). In determining whether appellant was entitled to a charge on a lesser included offense, we view the evidence in the light most favorable to appellant. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999) (accused entitled to instruction on defensive issue even if evidence raising issue is weak and controverted).

Manslaughter is a lesser included offense of capital murder. See Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984) (discussing involuntary manslaughter). Thus, Greeley's argument satisfies the first prong of the Rousseau/Royster test. We must next determine whether the record contains any evidence to indicate that if Greeley was guilty, he was guilty only of manslaughter.

To prove capital murder, the State must prove a culpable mental state different than that for manslaughter. Capital murder includes an intentional murder committed in the course of a robbery. See Tex. Penal Code Ann. § 19.03(a)(2); Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999). Manslaughter occurs when a person recklessly causes the death of an individual. See Tex. Penal Code Ann. § 19.04; Ervin v. State, 991 S.W.2d 804, 806 (Tex. Crim. App. 1999).

At issue here is whether there is any evidence showing that, if Greeley was guilty, he acted only recklessly. "[R]eckless conduct involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. At the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct." See Montoya v. State, 744 S.W.2d 15, 29 (Tex. Crim. App. 1987), overruled on other grounds, Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

Greeley points to evidence in the record that he contends shows that he acted only recklessly in causing Becker's death. Greeley relies on character testimony that he was not a violent person as well as testimony and physical evidence indicating that the killing was preceded by a struggle. Greeley also relies on his testimony that: (1) he denied telling Ooten he planned to kill Becker, (2) he did not go to Becker's house with the intent to rob or kill Becker, (3) "Everything happened so fast," (4) he could not "believe this had happened," (5) he "did not mean to" kill Becker, (6) he and Becker were struggling prior to the stabbing and Greeley thought Becker "was going to come up and grab" him. Greeley claims he wrestled control of the metal bar from Becker, ⁽¹⁴⁾ and the evidence shows that Greeley hit Becker in the head ten or eleven times and stabbed Becker twice in the neck, severing his jugular vein. While this evidence might negate Greeley's intent or raise the issue of negligence, it does not imply that Greeley consciously disregarded a known risk. "If a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required." Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (internal citation omitted). The record in this case contains no evidence that, if believed, shows that if the defendant is guilty, he is guilty of only the lesser offense on which he requested instruction. See Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). At best this evidence supports Greeley's contention that he acted in self-defense. ⁽¹⁵⁾ Self-defense was submitted to the jury and was rejected by them. We have reviewed the evidence in the record in the light most favorable to appellant and find no evidence that Greeley was acting with a conscious disregard of the risk created by his actions. Because the evidence does not raise an issue that Greeley's conduct was reckless, the trial court did not err in refusing to submit a charge on manslaughter.

Sudden Passion  

In his eighth point of error, Greeley contends that the trial court erred by discharging the jury without holding a punishment hearing at which Greeley could have adduced evidence of sudden passion. Greeley cites former Penal Code section 19.04(d), repealed before this offense occurred. ⁽¹⁶⁾ Otherwise, Greeley makes no argument and cites no authority under this point. We therefore overrule Greeley's eighth point of error. See Tex. R. App. P. 38.1(h); Smith, 907 S.W.2d at 531-32. When an accused is found guilty of capital murder and the State does not seek the death penalty, the law provides that the defendant's punishment must be assessed at life in prison and no punishment hearing is required. See Tex. Code Crim. Proc. Ann. art. 37.071 (West Supp. 2000).

In points of error nine through twenty-two, ⁽¹⁷⁾ Greeley argues that he was deprived of an opportunity to prove he acted out of sudden passion in violation of the fifth, eighth, and fourteenth amendments of the United States Constitution and sections three, ten, thirteen, and nineteen of article one and section one of article two of the Texas Constitution. Although the trial court understood Greeley to be challenging the constitutionality of the statutory scheme, Greeley did not raise specific claims at trial and thus failed to preserve error properly. See Tex. R. App. P. 33.1(a)(1)(A). Further, he did not brief his Texas constitutional complaints separately and has thus waived those complaints. In the event these errors were preserved, we will address them.

"Sudden passion" is a defense that may be raised at the punishment stage of a murder trial that, if proved, reduces the offense of murder to a second-degree felony. See Tex. Penal Code Ann. § 19.02(d) (West 1994). Greeley contends the Texas capital murder scheme is unconstitutional insofar as it results in an automatic life sentence following conviction in cases in which the State does not seek the death penalty because it deprives an accused of the opportunity to adduce evidence of sudden passion. See id. § 12.31(a); Tex. Code Crim. Proc. Ann. art. 37.071, § 1. Specifically, Greeley argues in relation to automatic sentencing that: (1) "[b]y precluding [the accused's] raising and the jury's considering lesser culpability entirely, the statute violates federal and Texas due process" (emphasis in original); (2) the statute violates constitutional prohibitions against cruel and unusual punishment because it subjects a person with lesser culpability to the same punishment as someone more culpable; (3) the statutory scheme violates equal protection and is unconstitutionally vague because it gives prosecutors "near [sic] complete discretion to waive the death penalty"; and (4) by providing for automatic sentencing, the legislature invades the province of the courts in violation of the doctrine of separation of powers. See U.S. Const. amends. V, VIII, XIV; Tex. Const. art. I, §§ 10, 13, 19.

Greeley seems to contend that the statute violates due process, equal protection, and the prohibition against cruel and unusual punishment because the State has discretion on what crime to charge. Greeley argues that an accused who commits an intentional murder in the course of a robbery but who acts from sudden passion can properly be charged with felony murder or with capital murder. Depending on which crime the State charges, the accused is subject to vastly disparate punishments since murder reduced by sudden passion is only a second-degree felony punishable by a maximum of twenty years whereas capital murder is a capital offense. Thus, Greeley argues, the legislature has given the State unfettered discretion to punish two persons with the same degree of culpability to very disparate degrees in violation of due process, equal protection, and the prohibition against cruel and unusual punishment.

Despite a faulty premise, Greeley's basic argument seems to be that giving the State discretion regarding what crime to charge violates constitutional protections because it allows the State to treat similarly situated individuals differently. The authority to define crimes and prescribe their punishments is vested in the legislature. See Ex parte Granviel, 561 S.W.2d 503, 515 (Tex. Crim. App. 1978). The executive branch is charged with enforcing the laws as adopted by the legislature. In enforcing these laws and deciding what crime to charge, the State has prosecutorial discretion. See Gregg v. Georgia, 428 U.S. 153, 199 (1975) (plurality opinion). In exercising its discretion based on the strength of its case, the State is limited by cognizable standards. See Gregg, 428 U.S. at 225-26 (White, J. concurring); Fearance v. State, 620 S.W.2d 577, 581 (Tex. Crim. App. 1980). We reject Greeley's argument that the statutory scheme and the attendant prosecutorial discretion are unconstitutional.

Greeley's remaining claims likewise have no merit. This Court has previously ruled that shifting the burden to prove sudden passion to the accused does not violate the state or federal constitution. See Robinson v. State, 945 S.W.2d 336, 341-43 (Tex. App.--Austin 1997, pet. ref'd). In addition, it is well settled that the discretion afforded the State on whether to seek the death penalty does not violate the constitution or the separation of powers doctrine. See Cantu v. State, 842 S.W.2d 667, 692 (Tex. Crim. App. 1992); Barefield v. State, 784 S.W.2d 38, 46 (Tex. Crim. App. 1989). Further, the Supreme Court has held that a sentencing scheme that calls for an automatic sentence of life imprisonment, rather than an individualized punishment determination, does not violate the Eighth Amendment guarantee against cruel and unusual punishments. See Harmelin v. Michigan, 501 U.S. 957, 995 (1991). ⁽¹⁸⁾ There is no significant difference between the Eighth Amendment prohibition against cruel and unusual punishments and the Texas Constitution's prohibition against cruel or unusual punishment. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997). Therefore Greeley's argument is without merit under either constitution. Points of error nine through twenty-two are overruled.

The judgment of conviction is affirmed.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: May 31, 2000

Do Not Publish

1. Four witnesses, including Greeley, testified at trial. Although Greeley was the only person present when Becker was killed, the other witnesses testified regarding what Greeley told them.

Johnny Ooten testified at trial that Greeley told him that Greeley and Becker were "hugging and their arms are wrapped around each other," Greeley tried to get up, the two men "for some reason . . . wrestled onto the floor and [Becker] pulled a metal weight bar from underneath the couch and [Greeley] took it from him, and from there began to hit him with it."

The State then read into evidence a portion of Ooten's statement to the police that said that the two men were "sitting on the couch cuddling up," Becker tried to get up, and Greeley started choking him. Greeley continued to choke Becker, and Becker wrestled Greeley to the ground and pulled the weight bar out from under the couch and started hitting Greeley. Greeley took the weight bar away from Becker and hit him with it.

Another witness testified that Greeley told him "he got in a fight and a man bit him and it was self defense and the fight got out of hand." Greeley testified to a fourth version of events in which Greeley tried to get up from the sofa, Becker started choking him, Greeley attempted to flip Becker over him, and Becker bit him. The two men then struggled to the ground, and Becker pulled out a steel weight bar and started hitting Greeley with it. Greeley and Becker struggled for the bar, and Greeley hit Becker with it repeatedly, but all the while Becker continued to struggle and did not let go of the bar.

A witness called by the defense testified to a fifth version of events in which Becker was holding "an instrument" against Greeley's neck, the two men struggled "for quite a few hours," and Greeley wrapped his legs around Becker to keep Becker from trying to strangle him. According to this version, Greeley held Becker with his legs "for quite a long time" and the two men struggled "for a long time."

2. Ooten testified that the first time he saw the safe it was in the garage at Becker's house. Other testimony established that Becker kept the safe in a closet in his upstairs bedroom.

3. It is unclear from the record how many of Becker's credit cards Greeley had at this time. Ooten first testified that Greeley took "them" (the credit cards) out of the glove compartment but later stated that he saw only a single Discover Card in the car prior to the opening of the safe, which contained Becker's wallet.

4. Although not in the record before this Court, defense counsel contended on the record that the two statements were contradictory. Although marked as State's exhibits, the State did not offer the statements into evidence but read portions of them into the record after Ooten denied having made certain allegations contained therein. Greeley did not request that the statements be admitted to place the portions read by the State into context. See Tex. R. Evid. 107 (when one party refers to portion of document or recording in examining witness, opposing party may request admission of whole document or recording to place portion in context).

5. The note pad containing the list was not admitted at trial. Although the list, which was admitted, could not have been properly seized under a Texas search warrant, the State argued at trial that Utah law allowed for its seizure. Greeley does not contest the admissiblity of the list on appeal.

6. Under the criminal version of the voucher rule, "when the State introduce[d] a defendant's confession in evidence, it [was] bound by any exculpatory statements contained therein unless such statements [were] disproved." Palafox v. State, 608 S.W.2d 177, 183 (Tex. Crim. App. 1979) (Dally, J. dissenting).

7. See Tex. R. Evid. 1002.

8. See Tex. R. Evid. 107. Greeley's case was subject to the former criminal evidence rules, and he apparently is arguing under those rules. Because the new combined evidence rules are not substantively different, we will refer to the current version of the rules unless otherwise indicated.

9. See Tex. R. Crim. Evid. 610 (1997).

10. See Tex. R. Evid. 403.

11. Because Greeley could have offered Ooten's written statements to place the admitted portions in context, we also question whether the tapes meet the requirement of being necessary under the rule. See Tex. R. Evid. 107.

12. Tex. R. Crim. Evid. 610 (1997). Greeley's brief refers only to "rule 610(b)." We can only assume Greeley intended to refer to former criminal evidence rule 610(b) because the current rule 610 does not have subsections and deals with religious beliefs or opinions. See Tex. R. Evid. 610.

13.

In one sentence under his heading "Credibility, Confrontation, Impeachment, Etc." Greeley seems to suggest that the tape establishes Ooten was biased because he was coerced and pressured into making his statement. As a general rule, wide latitude should be given to establish a witness's bias. See Gonzales v. State, 929 S.W.2d 546, 549 (Tex. App.--Austin 1996, no pet.). However, Ooten freely admitted on both direct and cross-examination that he was "under a lot of pressure." In addition, in offering the tapes Greeley never argued that they showed Ooten's bias. We cannot say the trial court abused its discretion in not considering an argument that Greeley failed to make.

14. Greeley testified that Becker continued to hold on to the bar during the entire struggle even after being bludgeoned repeatedly.

15. Greeley's testimony regarding self-defense was itself controverted. Ooten testified that when Greeley first told him what had happened, Ooten told Greeley that it did not sound like self-defense to him. Urry testified that she had the impression that Greeley was covering up something.

16. See Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. § 19.04 repealed by Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614, eff. Sept. 1, 1994.

17. Although Greeley's points of error are numbered one through twenty-two, his brief does not contain an eighteenth point of error.

18. Although Harmelin produced several opinions, five justices joined this holding.

"

2. Ooten testified that the first time he saw the safe it was in the garage at Becker's house. Other testimony established that Becker kept the safe in a closet in his upstairs bedroom.

3. It is unclear from the record how many of Becker's credit cards Greeley had at this time. Ooten first testified that Greeley took "them" (the credit cards) out of the glove compartment but later stated that he saw only a single Discover Card in the car prior to the opening of the safe, which contained Becker's wallet.

4. Although not in the record before this Court, defense counsel contended on the record that the two statements were contradictory. Although marked as State's exhibits, the State did not offer the statements into evidence but read portions of them into the record after Ooten denied having made certain allegations contained therein. Greeley did not request that the statements be admitted to place the portions read by the State into context. See Tex. R. Evid. 107 (when one party refers to portion of document or recording in examining witness, opposing party may request admission of whole document or recording to place portion in context).

5. The note pad containing the list was not admitted at trial. Although the list, which was admitted, could not have been properly seized under a Texas search warrant, the State argued at trial that Utah law allowed for its seizure. Greeley does not contest the admissiblity of the list on appeal.

6. Under the criminal version of the voucher rule, "when the State introduce[d] a defendant's confession in evidence, it [was] bound by any exculpatory statements containe