Buchanan v. State

¶1DISSENTING OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

¶2dissenting.

¶3I dissent. Because I believe the Court of Appeals reached the correct result in this case, it is unnecessary to address the legal issues the majority addresses. Therefore, I would dismiss appellant’s petition for discretionary review as improvidently granted.

¶4These are the facts relevant to appellant’s first ground for review as set out from the opinion of the Court of Appeals.

“In this case, appellant introduced evidence at the guilt phase of trial that indicated safe release. However, he introduced no evidence whatsoever on the issue during the punishment phase of the trial, nor was the evidence adduced at the guilt phase reoffered at the punishment phase. We hold that the evidence must be presented during the punishment phase. Such a holding is required for several practical reasons. For example, there is no guarantee that appellant will be sentenced by the same judge who presides over the guilt phase of the trial. Unless evidence of safe release is presented at the punishment phase, the sentencing judge will not have the benefit of such mitigating evidence. Also, there is the possibility that several months will pass between the trial and the sentencing. In fact, such is the situation in this case. Appellant was found guilty on October 15, 1993, but he was not sentenced until December 3,1993.1 Because of the passage of time and the number of cases heard by our criminal courts, it would be unreasonable to expect our district judges to recall minute details from the guilt phase of the trial.” Bu*17chanan v. State, 881 S.W.2d 376, 378 (Tex. App. — Houston [1st Dist] 1994) (Emphasis in original).

¶5The majority holds the Court of Appeals erred to decide appellant had to reintroduce at the punishment phase the evidence from the guilt phase that appellant released the victim at her mother’s home. Buchanan, 881 S.W.2d at 378. The Court of Appeals characterized the victim’s mother’s home as “presumably a safe place.” Buchanan, 881 S.W.2d at 378. The majority concludes that the evidence that appellant released the victim at her mother’s home conclusively proved he released her in a safe place. However, I would hold the evidence that appellant released the victim at her mother’s home, without more, failed to satisfy appellant’s threshold burden to produce evidence of release in a safe place.2 See Williams v. State, 851 S.W.2d 282, 286 (Tex.Cr.App.1993) (defendant has threshold burden of producing evidence of release in a safe place). From the record, I cannot tell whether the home of the victim’s mother was a safe place, and I am unwilling to “presume,” and the statutes do not create a presumption, that it was or that appellant’s evidence “conclusively proved” it was a safe place. There is no evidence in this record that the home of the victim’s mother was a safe place. Therefore, it is unnecessary to address whether appellant should have reintroduced at the punishment phase evidence from the guilt phase that appellant released the victim at her mother’s home.

¶6Assuming appellant’s evidence from the guilt phase raised the issue of release in a safe place, I would hold the Court of Appeals, for the reasons it stated, properly applied this Court’s decision in Williams. In Williams, this Court reiterated that the “issue of safe release is properly litigated at the punishment phase of trial.” Williams, 851 S.W.2d at 286. Here, appellant presented no evidence at the punishment phase that raised the issue of safe release. The punishment phase occurred approximately two months after the guilt phase. The Court of Appeals correctly determined that “it would be unreasonable to expect our district judges to recall minute details from the guilt phase of the trial” especially where, as here, the punishment phase occurs some length of time after the guilt-innocence phase. Buchanan, 881 S.W.2d at 378.

¶7It also should be noted appellant made no attempt to litigate the issue of safe release at either phase of his bench trial. He did not request the trial court to make any fact-finding on the issue of safe release or inform the trial court that it was an issue in the case. In other words, he did not inform the trial court that safe release was an issue at the punishment phase because of evidence introduced at the guilt-innocence phase. We should require defendants to do more than what this appellant did to satisfy their initial burden of making safe release an issue in the case. See Williams, 851 S.W.2d at 286-87.

¶8With respect to appellant’s second ground for review, I would hold, as the Court of Appeals did, the State’s open file policy is sufficient to comply with the notice requirement of Tex.R.Crim.Evid. 404(b). The State’s open file policy complies with the spirit, if not the letter, of this requirement by allowing a defendant adequately to prepare to defend against the extraneous offense evidence which is subject to the notice requirement of Rule 404(b). The majority’s holding requires the State “to divulge in advance its trial strategy.” See Espinoza v. State, 828 S.W.2d 53, 54 (Tex.App. — Houston [14th Dist.] 1991), ajfd on other grounds, Espinosa v. State, 853 S.W.2d 36 (Tex.Cr.App.1993).

¶9I dissent.