*1 ROBERTS, JJ., DALLY, PHILLIPS
dissent reasons in the opinion stated
on original submission.
CLINTON, J., dissents. BATES, Appellant,
Garth Texas, Appellee.
The STATE of
No. 58338. Texas,
Court of Appeals Criminal
En Banc.
Jan. 1979.
Rehearing Sept. Denied 1979.
Second Motion Rehearing Denied
Oct. 1979.
123 *4 Houston, appel- for Teague,
Marvin 0. lant. Vance, Dist. Michael Atty.,
Carol S. Kuhn, B. Burge John W. and William Houston, Holmes, for Jr., Dist. Attys., Asst. the State. Austin, Huttash, on Atty.,
Robert State’s rehearing, for the State.
OPINION DAVIS, Judge. W. C. for appeal
This from a conviction is an which bribery; punishment, of offense court, imprisonment was is assessed eight years. for (1) the statute Appellant that: contends prosecuted is unconsti- under was which he defective; (3) tutional; (2) the indictment sustain is insufficient to evidence verdict; ad- (4) items which were certain of were the result mitted in evidence seizure; (5) certain and unlawful search erroneously admitted tape recordings were predicate proper in evidence because established; in (6) erred the court was not examine appellant’s motion to overruling (7) certain tape recordings; original to the co-party of acts and statements admitted; (8) the erroneously offense were allowing of the State’s court in three erred (9) proffered testify; evidence witnesses to testimony of by appellant to rebut ex- erroneously was State’s chief witness eluded; (10) representatives of erroneously the court failed enforcement officers and charge jury on special the law circumstantial of the district crimes division evidence, erroneously refused thirteen meeting, this Fonten- attorney’s office. At special instructions were re- agreed police and rec- ot to work with (11) quested by appellant; prosecu- might ord he have future conversations engaged improper argument. tor concerning anyone payment with his lighter sentence. money exchange It was established that was months, During from March the next few judge elected Judicial 174th District 16, recorded numer- through July Fontenot state on 1972. Appel November ous Riklin. In these conversations with lant took the on oath of office December taped conversations, specifical- never Riklin 1972, and on January commissioned Januaryly money paid to stated that the was to be 1973. He was office on removed from probated exchange for a sen- Bates, See In re 1977. However, tence. numerous occasions (Tex.1977). Riklin someone else as “the would refer to Nukie “Frenchy” prin- friend,” party,” “my your friend and cipal witness for the He State. testified big “the boy,” which indicated that he was September 21,1975, indicted on tape was the On two of the appellant. 174th District Court the offenses recordings, cognizable, voice is robbery concealing goods, stolen indicating apart- in Riklin’s presence both of which arose out an incident *5 ment. which we shall refer to as the Mize robbery. December, the part 1975, In latter conversations, Fon- finally After these it was tenot was Riklin, introduced to Ed who said agreed give money would the that Fontenot “he had been talking somebody higher to probation, price for the of which had the up” and indicated he help that could Fon- 16, $60,000, July been raised to Riklin on to tenot probated secure a sentence in ex- that arranged 1976. It was Riklin would change $30,000. for subsequent In conver- Northwest meet Fontenot at the National Fontenot, sations with Riklin stated that he Bank at 9:00 a. m. at which time Fontenot awas “real close of appellant, friend” with $60,000. give would Riklin the At 8:20 a. whom he previous had “dealings.” had Rik- m., met July Fontenot Bob Bennett of lin never specifically mentioned to whom they the office and attorney’s district money the was paid, referring only to be to $59,000 placed bills in Fontenot’s in $100 “big the somebody man” and “higher up.” deposit safe the box at bank.1 Fontenot Fontenot testified that he understood from met Riklin m. and handed the at 9:00 a. his conversations with Riklin that the mon- money to him. was near Appellant ey was to paid appellant. Before bank at the time was situated so that and paying Riklin, the money to Fontenot want- exchange. he could observe the Immediate- ed assurances that proba- he would receive bank, ly ap- at the exchange after the tion, but Riklin judge stated that the would pellant and Riklin at the office of met Fontenot, not meet or talk with and that Brown, appellant’s James H. accountant. Fontenot just would have trust Riklin. meeting, At that handed Brown two Riklin $10,000 March, packets amounting to money and
In
Fontenot was arrested
stated,
payment
aggravated assault,
“This is the
on the
down
an offense not con-
apartment
nected
Brown
robbery
to the
at
the Beaconsfield.”
pending
charge.
apartments
jail
When Fontenot
testified that
the Beaconsfield
was released from
appellant
March
he
had
property
had a conversation with
a leasehold
Hous-
police
$10,000
ton
been
purchasing.
detectives Sam Nuchia and Earl
interested in
Musick. Later
evening,
payment
that same
from Riklin
on an
Fonten-
was a down
ot and
attorney
buy
ap-
with
apartment
met
several law
intended to
once
Riklin
$60,-
1. While the amount was intended to be
left in a Xerox machine
law enforcement
$1,000
money
photocopied.
it later was
that
was
established
was
officers when the
in his own behalf
pellant
acquired
Appellant testified
property.
had
Brown
Riklin,
by appellant
was instructed
to take the
Riklin
while he was a friend
$10,000
get
and
a cashier’s check to be used
paying
was
that Fontenot
never indicated
money
as earnest
purchase
he would
understanding that
money on an
left,
property.
appellant
After
Riklin
and
Appel-
sentence.
give
probated
Fontenot a
acquired
Brown
the cashier’s check and de-
approached
that Riklin
explained
lant
livered it to the escrow holder.
Fontenot was
stated that
appellant
bank,
attorney
get
After he left the
Fontenot went
an
his friend and he wanted
office,
attorney’s
district
where he
Appel-
represent Fontenot.
appointed to
$59,000
only
learned that he had delivered
requisites for
outlined to Riklin
lant
$60,000. Upon
instead of the intended
represent an indi-
attorney to
appointing an
learning
shortage,
of this
tele-
help
he would
Fon-
and said
gent defendant
phoned
appellant
Riklin.
attorney
ap-
was
seeing
tenot
exchange
After the
at the Northwest Na-
Riklin
not know
Appellant did
pointed.
Bank,
tional
law
officers lost
enforcement
Fontenot or that
money from
receiving
Riklin,
appellant
following
contact with
to believe
leading
Riklin
they
established surveillance at the
in ex-
money
would receive
appellant
apartment.
house and Riklin’s
at
Concern-
change
probated
for a
sentence.
Appellant
approxi-
arrived at his home at
testified
exchange, appellant
ing the actual
mately 10:30 a. m.
was under surveil-
Riklin was
by Riklin that
that he was told
m.,
approximately
p.
lance until
1:30
at
a friend
money from
going to receive some
again
which time the officers
lost contact
asked
on an old debt. Riklin
apartment
with him. Riklin arrived at his
take care
accompany him in order to
m.,
at approximately
p.
2:15
and as he en-
give
money and so he could
apartment
tered his
enforcement offi-
law
apartment.
payment on Riklin’s
down
carrying
shotgun they
cers saw him
be-
Brown,
$10,000
it
gave the
When Riklin
illegal length.
lieved to be of
The officers
money be-
was indicated that
never
tried to
obtain a search warrant
any dis-
nor was there
longed
appellant,
*6
prohibited weapon,
they could do
but before
concerning
cussion
Fontenot.
emerged
apartment
so Riklin
from the
with
time,
shotgun
p.
at 2:40 m. At that
pos-
money found in his
regard to the
In
placed
Riklin was
under arrest. Riklin sub-
session,
that Rinklin
stated
appellant
sequently
of his
consented to the search
intended
$4,000,
was
given him
had
$30,000
$59,-
apartment
original
appellant for
$5,000,
owed
to be
that Riklin
arrest,
000 was recovered. After Riklin’s
sold Riklin and
had
appellant
an automobile
appellant
was
arrived at the scene and also
deposit-
After
debt.
gambling
for a small
placed
recovered
under arrest. The officers
account, appellant had
$1,100
ing
in a bank
$2,900
$59,000
original
appel-
from
the time
$2,900
officers at
found
pocket.
lant’s coat
arrest.
introduced other evidence
State
rebuttal,
the tes-
introduced
In
the State
a
appellant
which tended to show the
had
Howard,
testified
timony
Irwin
who
relationship
Testimony
close
Riklin.
with
for theft
under indictment
he had been
also was introduced which tended to show
After
appellant’s court.
pretense
false
appellant
certain financial difficul-
had
Riklin, he
contacted
Howard had been
purchase
proper-
ties with the
of two ranch
stated, “Mr.
spoken
appellant
to
banking
ties in 1976 and certain
transac-
in the
me for somewhere
Riklin has told
sought
rebut
tions in 1975. The defense
to
$10,000
this case
neighborhood of
evidence to
and introduced
your
court-
against me
pending
that’s
show the
not in
financial
of,”
to which
be taken care
room can
pur-
to
difficulty
amply
and could
afford
Riklin
and Mr.
replied, “Myself
properties
chase both
and the
the ranch
Riklin
and Mr.
looking
the matter
are
into
apartments.
Beaconsfield
(1940);
Lowrey, 301 U.S.
point
Herndon v.
handling
you
will be
it with
from this
(1937).
732,
V.T.
worry
242,
on. Don’t
about it.”
State.
as consid-
(1) any pecuniary benefit
decision,
recipient’s
eration
Appellant’s
ground
second
of error
recommendation, vote, or other
opinion,
complains of the trial court’s refusal to rule
public serv-
discretion as a
exercise of
Code,
V.T.C.A. Penal
Sections 36.02 and
voter;
official,
ant, party
or
36.08 unconstitutional on account of their
(2) any
as consideration
benefit
alleged violation of federal and state consti
decision, vote, recom-
recipient’s
provisions.
tutional
mendation,
of official
or other exercise
respect
With
re-
contention
administra-
judicial
in a
or
discretion
garding
36.08,
ap-
Section
we conclude
or
proceeding;
tive
pellant
standing
challenge
has no
such
for a
(3) any
as consideration
benefit
clearly being prose-
statute since he was
on a
duty imposed by
a
law
violation of
pursuant
felony provisions
cuted
party
or
official.
public servant
Irwin,
Section 36.02. See U.
354 F.2d
S.
un-
(b)
prosecution
It is no defense
(2nd
1965).
Cir.
person
whom
der this section that
Appellant contends that Section
quali-
influence was not
sought
actor
indefiniteness,
36.02
vagueness,
is void for
way whether
act in the desired
fied to
and overbroadness. A statute is void for
yet
assumed office
because he had
vagueness
give
person
if it fails to
or for
jurisdiction
he lacked
ordinary intelligence
notice that his
fair
reason.
contemplated
conduct
is forbidden
is a
section
(c)
under this
An offense
statute, Papachristou
City
of Jackson
Amended
degree.
felony of the second
ville,
156,
839,
405 U.S.
31 L.Ed.2d
S.Ct.
915,
342,
1975,
Leg., p.
ch.
by Acts
64th
Harriss,
(1972);
United States v.
1975.”
Sept.
sec.
eff.
(1953),
U.S.
74 S.Ct.
citizens and contrary appellant’s posi- substantially the employs The indictment tion, give sufficient required the notice Code, language V.T.C.A. Penal Section III, under Article Section of the Texas one allege more than 36.02. It does not State, supra, Constitution. Unlike White v. offense, means of alleges rather several but there is not a veiled reference to the The bribery. committing the offense changes amendatory enacted act. overruling appellant’s court did not err in Any caption apprised reader would be quash the indictment. motion to the fact bribery being that the statute was that the evidence Appellant asserts penal- amended in terms of substance and be to sustain the conviction is insufficient ties. caption We therefore hold that accomplice wit cause the relating to the amendments of V.T.C.A. Pe- re ness was not corroborated Code, nal 36.02 does not violate the Section 38.14, quired by Article V.A.C.C.P. III, provisions of Article Texas Section corrobora- sufficiency “The test of Constitution. accomplice tion of the of an evidence of witness is to eliminate the Appellant contends that the court then accomplice from consideration overruling quash erred in his motion witnesses evidence of other examine vague indictment indef because it is so evidence inculpatory ascertain if there apprise inite that it him of the did not character', incriminating charged. offense or evidence with which he was We do accused with to connect the agree. alleges, perti which tends indictment part, nent of the offense.” as follows: the commission *9 130 appel- Musick then told (Tex.Cr.App. pockets of his coat.
Cherb v. 273 coat, 1971). in the instant case the The evidence lant to remove his hand from which of the corroborates the laid it on the appellant the coat and doffed accomplice witness Fontenot includes the any- car, “I have saying, don’t seat of following: stepped appellant After thing my coat.” being
(1) in- he was tape recordings why which were car he asked from the appel- get troduced into evidence showed that to his asked Musick stopped. He then spoken coat, lant had to Fontenot and for were in his keys, which he said car during appellant’s coat, voice was discernible inside the When Musick looked him. conversations between Riklin and Fon- dollar hundred twenty-nine he saw one tenot; bills. (2) each oth- appellant and Riklin knew argues that his arrest—and Appellant well; er re- his coat which the search of therefore (3) appellant present and observed $2,900—was sulted in the seizure of exchange money of between probable Musick lacked unlawful because Riklin; appellant When appellant. cause to arrest (4) appellant possession was in of a arrested, in- was aware Musick portion money of the when he was arrest- recordings had been made criminating tape ed; and and Rik- of between conversations (5) appellant’s por- accountant used a appellant. lin and between Fontenot money purchase tion of the a cashier’s money be- the transfer Musick observed check for use in real estate transaction and observed and Riklin tween Fontenot appellant was involved. vicini- very close to the appellant “was amply This evidence is sufficient to corrobo- money from ty.” After Riklin received the testimony rate of Fontenot and to sus- Fontenot, departed in dif- appellant he and tain the conviction. same time. approximately ferent cars at up drove as he Appellant was arrested Appellant complains also that cer hours after apartment several Riklin’s items, including portions money tain exchange money. paid Riklin, by Fontenot which were him, admitted in taken from evidence were V.A.C.C.P., 14.01, provides, Article car, apartment by his Riklin and Riklin’s part, as follows: pertinent ap unlawful searches and seizures. Since of- “(b) may arrest an peace A officer pellant legitimate expectation had no a warrant fender without privacy or interest of kind in either presence his offense committed in person apartment, Riklin’s and since or his his view.” within against appellant depend the case did cause existed probable We hold that possession evidence at the seized arrest was arrest and that appellant’s seizure, time of the he contested search and 14.01(b), supra. authorized Article standing challenge lacks the admission and the seizure appellant’s search of coat the evidence taken from Riklin. Brown inci were conducted States, money therefrom United U.S. S.Ct. exceed and did not to a lawful arrest (1973); 530 dent L.Ed.2d 208 Smith a search. for such permissible scope (Tex.Cr.App.1975). S.W.2d 827 California, 395 U.S. See Chimel appel Detective arrested Musick (1969); Bodde 23 L.Ed.2d S.Ct. apartment. lant as he arrived at Riklin’s (Tex.Cr.App.1978); 568 S.W.2d recognized appel Musick testified that he (Tex.Cr. Tarpley v. up apartment lant as he drove App.1978). while that he ran to vehicle dis tape urges that Appellant playing badge appellant and asked ev erroneously admitted recordings were stop. step When Musick asked had not predicate car, proper from the reached into the idence because *10 State, Detmering v. Appellant relies on necessary predicate been established. The (Tex.Cr.App.1972), and Ter the 481 S.W.2d tape recordings admission of is as follows: App.1977). Edwards v. vice was cording, authenticity and correctness of the re- a tions or deletions have not been tion without from the some of the ly acquired of a shown with the quired for admission of showing showing “(1) “. [*] speakers, of the competent, (3) breathalyzer A . (4) capable showing Without [*] . of the manner that the elicited was recording, (6) testimony and need not a evidence, requirements kind of inducement. [W]e showing [*] of test.” same (7) that the indulging also find that at least operator taking testimony, establishment of the such as the results [*] voluntarily showing particularity identification of of can be changes, recording of the in a detailed mechanical- [*] preserva- made, (5) inferred (Tex.Cr. device made addi- [*] de- (2) re- rell v. one strand which constituted dence adduced at trial. ant charged cordings in the instant supra, of the indispensable to the State’s 1975). tended to connect charged.) mission of tains no indication that of the so tape pellant moved for an examination discretion in does Art. Article any way suggest sought recordings, examination recordings was laid. proper In each of those with 39.14, V.A.C.C.P., 39.02, in web of important altered, inspect predicate for the introduction incriminating evidence 521 S.W.2d considering appeal. a offense possessing; V.A.C.C.P., vests the appellant with was the case constituted evidence, but were with (See requested contraband he appellant does incriminating evi cases, such under trial court recordings were The record con- case. the which he (Tex.Cr.App. the defend motions, as discussion, which items of the com not provides The re of which with only only was ap recitation testimony, of Fontenot’s we by the defend depositions taking for the of merely observe that he established each of an abuse held that before ant. We have taking the seven required by refusing elements to allow the Edwards. discretion in found, defendant We proper predicate depositions hold that the will be was laid thereby injured. he was must show that tape admission of the recordings. (Tex.Cr. James v. Appellant argues tape also that the State, 461 App.1977); Beshears recordings were inadmissible because Fon also have held (Tex.Cr.App.1970). We tenot comply did not provisions with the comply failure to prosecution’s 4413(29bb), Article 13(a), Sec. V.A.T.S. 39.14, Art. discovery under with a order That licensing statute is concerned with the Hol error. supra, may constitute harmless private investigators patently and is in (Tex.Cr.App. lowell applicable Fontenot, taking part who was affirmatively 1978). Appellant has not in a investigation agent criminal injured by the court’s shown how he was the State. tape re inspection of refusal to allow of the Consequently, the denial cordings. Appellant contends that the court harmless inspection constituted motion for overruling erred in inspection his motion for error. original tape recordings of the con versations between Fontenot Riklin in four related Appellant contends (cid:127) appellant. (Ap and between Fontenot and and state- certain acts grounds of error that pellant inspect copies was allowed to erroneously admitted ments of Riklin recordings). granted The court should have hearsay, be- they were in evidence because appellant’s inspect original motion to violated their admission cause tape recordings. witness- right Given facts of this constitutional confront case, however, him, were mere they the failure to do so does not against es and because constitute reversible error. “narrative declarations.” sought there indepen
Where is sufficient testified that to assist *11 dent evidence to establish a conspiracy, Riklin after Ford had arrested Riklin on a hearsay conspira acts and statements of a charge. George, County narcotics a Harris tor during which are made the course of sheriff, deputy appellant testified that and in conspiracy the furtherance of the are employee asked him to hire Riklin as an against admissible conspirator. another Department. Appellant ar- Sheriff’s State, Denney (Tex.Cr. v. 558 467 S.W.2d Odom, gues George that Ford and should App.1977); Delgado State, 544 v. testify not because have been allowed to (Tex.Cr.App.1977). 929 testimony their showed extraneous offenses appellant were irrele- committed which independent The evidence of a con appellant vant for was to the offense which spiracy quite in the ample. instant case is being The agree. tried. We do not State contention, It however, is that prove, to show the entitled to order the conspiracy terminated when Fontenot a close rela- conspiracy, existence of paid money Riklin, to and any subse Rik- tionship appellant between quent existed acts and statements Riklin were important, lin. More therefore Delgado inadmissible. See v.
State, complains only shows supra. agree. We do not he tried Riklin on several occasions to assist conspiracy is not terminated until “[A] guilty and did that he was not show
everything has been done that was con-
Kennedy v.
offense or misconduct. See
templated to be
conspira-
done
State,
(Tex.Cr.App.1975).
520
776
tors.”
Baugh
State,
135
Appellant
Tex.Cr.R.
that the court erred in
asserts
(1938).
Tanner,
S.W.2d 297
conspiracy
an
refusing
John
under-
to allow
instant
did
upon
case
County
terminate
cover
officer of
Harris
Sheriff’s
completion of the offense of bribery, of Department,
testify
to
and rebut certain
which appellant was
It
convicted.
was con-
Fontenot
testimony given by Fontenot.
templated by
conspirators
that Fonten-
“deal” with
testified that he did not have a
ot
granted
would
probated sentence,
be
to have
attorney’s
the district
office
done,
and until
that was
the conspiracy
exchange
pending charges dropped in
for
Denney
State,
could not terminate. See
cross-examination, Fon-
testimony.
On
supra;
State,
Lamberson v.
nal responsibility. defendant, Bates, See V.T.C.A. Penal that the and Ed Garth Code, Sec. 7.01. Direct appel evidence of agreed Riklin had to commit and were participation lant’s in the offense included acting together in the commission Fontenot’s concerning conversa alleged in the indictment. In this offense tions with tape and Riklin and you you connection are instructed that recordings conversations, appel those defendant, may not find that Garth lant’s exchange observation of the money Bates, agreed to com- and Ed Riklin had Riklin, between Fontenot appel acting together mit in the com- and were possession lant’s portion of a money. of that alleged in the in- mission of the offense The court did not err refusing the re dictment from of the state- consideration quested charge on circumstantial evidence. ments, any, presence if outside the made Of the thirteen requested Bates, instruc- defendant, Garth tions which appellant contends the court Riklin, Ed between Nukie Fontenot and refused, improperly one concerns the law of evidence, alone, but there must be other parties, two deal necessity with the for cor- statements, in addition to such to war- roboration of accomplice witnesses’ testimo- defendant, finding rant a Garth that the *13 ny, and three are pres- addressed to mere Bates, agreed to com- and Ed Riklin ence, being association or discussion insuffi- acting together in the com- mit and were cient to corroborate the of the alleged in- mission of the offense in the accomplice witness. charged The court dictment. jury on the law parties necessity of and the believe, you you “If do not or if have so the testimony accomplice of the wit- thereof, you a reasonable doubt cannot nesses be charge corroborated. This ade- statements, any, if evi- consider such as quately protected appellant’s rights, and the defendant, against dence Garth court did not refusing err in the requested Bates.” instructions. argues Appellant that he was entitled to Appellant has not directed our attention requested the law of con- instructions on any evidence which would have raised conspira- spiracy because he was tried as a presence, issues of mere association and Appellant tor. was This is not the case. Appellant discussion. witnessed the ex- indicted to the offense party and tried as a change money of between Fontenot and bribery, charge authoriz- and the court’s possession later was portion found in of a jury ed the on this convict money. See Dillard v. theory was conspiracy alone. The law of S.W.2d 45 (Tex.Cr.App.1977). Appellant’s only admissibility relevant insofar as the requested instructions on these issues were concerned, certain acts and statements properly refused. charge adequately and the thereon court’s remaining The seven instructions protected rights. requested by appellant deal with the law of is that Appellant’s final contention conspiracy. The court jury instructed the following argument by prosecutor, as follows regarding conspiracy: the law of made, objection to which constituted no “There have been admitted in evidence fundamental error: allegedly statements by made the witness judge? “Believable You know there’s
Nukie Fontenot to Ed Riklin and state- person allows a thing little in law that allegedly ments by made Ed Riklin to they take the they when are on trial and Fontenot, Nukie having said statements attack, credibility they is under been made stand and presence outside the defendant, bring witnesses to show can in character Garth Bates. You are in- and vorac- they person structed are a of truth you may that before consider statements, I see a any, ity. Maybe such if I missed this. didn’t as evidence against defendant, Bates, even you Judge guilt one. The who denies his Garth beyond must believe a reasonable doubt on this.” in the product of counsel except the work argument We cannot characterize the their and investigators appellant complains being prej- which so case and their letters, accounts, books, report), it not have been rendered udicial that could notes or things tangible objection objects or sustaining harmless of an photographs, or con- jury thereto and an instruction to the constitute privileged, which not matter in- disregard any it. Baker v. See material tain evidence are in the (Tex.Cr.App.1963). Appellant action and volved in the any ob- of the State custody has waived error his failure to or control possession, ject. order shall See Williams v. The agencies. or of its manner of (Tex.Cr.App.1971). time, and place specify the taking the inspection and making the judgment is affirmed. any of the copies photographs tangible CLINTON, JJ., partici- ODOM aforementioned documents evidence; however, pating. provided, extend to granted shall not rights herein PHILLIPS, Judge, dissenting. between written communications representa- agents or any of its State or I. Act Nothing in this employees. tives or Corrupt public are no less citi- officials evi- of such the removal shall authorize deserving protection zens of our laws possession of dence from procedures person than who pres- in the shall be any inspection appeals majority to this Court. The affirms of the State.” representative ence of a notwithstanding this case two serious errors ultimately over- motion was Appellant’s committed the trial court in the course trial. prior the trial court ruled *14 failing of this trial. The first error was to independent allow the defense to ex- have exclusively on this appellant relies The perts tape recordings examine the that State, 481 Detmering v. rulings in Court’s indispensable were to the case. The State’s v. Terrell (Tex.Cr.App.), and 863 S.W.2d failing second such error allow the to ap- State, (Tex.Cr.App.), 618 S.W.2d develop jury defense to for the the context of possession for peals in which convictions in “Frenchy” which Nukie Fontenot was re- marihuana, were respectively, LSD brought “principal to them as the State’s overruled courts because the trial versed witness.” for an inde- pretrial motions appellants’ the allegedly drugs pendent examination II. Judge Mor- by opinions possessed. In both 18, 1976, August a appellant On filed of wheth- rison, is made express no mention examination, independent motion an in- for must be “good cause” er and to what extent alia, original tape recordings ter at “inspec for in a motion alleged or shown any laboratory designated by the district things “tangible non-privileged tion” of 39.14, V.A.C.C.P., pro- attorney. Article evi or contain . which constitute vides: in matter involved material dence matter, we hold As a threshold
“Upon motion of the defendant show- the action.” cause” is “good of ing good upon requirement cause therefor and notice as well inspection a motion for parties, necessary to the the court in which an State, 468 v. discovery. Smith pending may order the State as one for action is v. Sonderup (Tex.Cr.App.); during before or trial of a criminal action Hoff State, (Tex.Cr.App.); produce and 418 S.W.2d pending therein or on trial to (Tex.Cr.App.); State, permit pho- man v. 514 S.W.2d inspection copying (Tex.Cr. State, Feehery v. tographing by or behalf of the defend- of consideration documents, That this Court’s designated papers, App.). ant of confronting a defendant, issue when (ex- “good cause” written statement of the of examination independent request cept written statements of witnesses particular evidence be upon by accomplice relied the was an witness as a matter of law, State analysis thereby varies from its requiring vis-a-vis more State corrobo- general discovery jury rate his could motions is demonstrated before the upon 38.14, rely it. Article in V.A.C.C.P. The opinions Detmering Terrell, its tape recordings of conversations between supra, and is Judge Doug underscored appellant Riklin and Fontenot and and Fon- las’s opinion Feehery supra, tenot, Fontenot, made crucial were 2. primary Footnote The reason for this corroborating accomplice witness testi- analysis variation in “inspection” is that an mony tape recordings of Fontenot. These means “more than a visual examination of tended to connect offense object. an visual examination would [A] bribery of and make Fontenot’s always not divulge anything probative of likely trustworthy. Caraway more than value” concerning “the item on which the (Tex.Cr.App.); Ar- State its bases case . . . .”1 Detmer 38.14, V.T.S.A., C.C.P., ticle Note 119. ing supra, Additionally, at 864. Of additional relevance to the considera- Detmering leaves with us the idea that “good existed for tion whether cause” “good cause” imputed will be by this Court independent ex- appellant’s motion if the evidence sought be is examined original tape recordings amination “the item on State bases its accomplice fact witness case,” e., i. piece crucial of physical evi provided predicate for the testimonial dence. Id. at 864. tape recordings required as admission of the Thus, inquiry now turns to whether the under Edwards tape recordings sought to be examined (Tex.Cr.App.). elements One the seven pieces physical evidence required predicate changes, for a no is that or, crucial to the State’s case in other additions, or deletions have been made on or words, on which the State “item[s] base[d] vein, tape recordings. to the In this there against its case” appellant. appear pauses recordings, as The incriminating State’s chief witness statements marked as unintelligible well (Frenchy) Nukie Fontenot. The trial “(?)” pauses in the were ex- record.2 charged jury court this witness plained to have resulted from respect adequacy 1. minority important With to the of an examina- infor- constitutes copies provided tion of the defense counsel mation. *15 motion, discovery testimony under ques- their the of MR. I further REYNOLDS: have no hearing Dr. Thomas G. Stockham at the on tions. illuminating. motion for new trial is CROSS-EXAMINATION BY MR. QUESTIONS HOLMES: Now, then, my question sir, you, of “Q Doctor, you copy listen to a of the Q could your opinion, professionally agreeable is it to original tape listening determine from to inspect tapes or examine to from do so a any copy that reasonable whether not copy original? rather than the tests, ground subject exists it to further to extremely A will It much difficult more example? any intelligent to make tapes of such examination reliability. A Not with much copy compared origi- from a to from an copy You would not listen to a to make Q nal. you that determination? explain just briefly why Can this is Q Well, copy, you you might A listen but to a so? very weight place wouldn’t on all, tape much that original A Yes. First of the has particular of kind examination . concerning information on it of the details made, how it was what kind of machine it example following statement 2. An is on, was made of the nature that machine and 8, 1976, following a Riklin Fontenot June on, completely so which are eliminated in the recorded call between Bates and Fontenot process creating copy. of a Much of the pointed impropriety out of which Bates germane information that is to the authentici- parte necessity ex communication and the ty originality tape, first the actual disqualifying if did not termi- himself Fontenot tape originally physically made cannot be nate the conversation: can, by making copy. transcribed however, a Some (inaudible) going amount information that is RIKLIN: “It’s over with copy disqualify transferred on it that —” this relative to issue himself and that’s this displacement III. suction-cup of the device phone used on the to record the conversa- one, ground In his of error Although tions. question ultimate failing the trial court erred contends that tapes whether the are admissible is a mat- Tanner, an undercover offi- to allow John discretion, ter for the expert trial court’s cer, testify and rebut certain witness given primary would be material to the witness Nukie informed the State’s that he did exercise of Fontenot. Fontenot testified that discretion. a Such witness attor- with the district any not have “deal” would also any be essential defense ex- charges in ney drop any pending against the admissibility tape record- change testimony. On cross-exami- for his ings. nation, denied his involvement Finally, bribery in a prosecution, the es- robbery stated he was the Mize house sence of the “understanding” offense is the guilty of that offense. Fontenot admit- upon acceptance which the offer or of mon- jewels offi- ted he sold some to undercover ey or predicated. other benefit is It must telling cer Tanner Tanner he but denied be “as recipient’s consideration for the . up” robbery. regard “set With to other exercise of official discretion . . . .” actions, criminal testified as fol- V.T.C.A., Code, Thus, Penal Section 36.02. lows: linguistic discussions or context of the “Q [By appellant’s attorney] As terms of the acceptance offer or are critical you of fact asked Mr. Tanner matter bribery prosecution. successful This conversation, during Fon- Mr. inescapable fact tape renders the recordings tenot, you asked him would he kill critical to the State’s case and renders the Pope. you man Do the name of trial court’s refusal to independent order an remember that? original examination of the tape recordings sir, A No I did not. reversible Detmering error. su- Q You did not do that. You don’t re- pra; Terrell v. supra. asking if he member Mr. Tanner majority concedes much of the fore- Pope price would kill if the going when it holds the motion should have right? granted. been ignores Yet it the same con- sir, A No I didn’t. siderations when it concludes the error was Q asking youDo remember Mr. Tanner harmless because there has been no showing you you going if to furnish tampering or holding alterations. In weapon you you said the accomplice witness Fontenot was would? corroborated in testimony, his tape re- sir, A No I did not. cordings are cited Only possession first. money corroboration, marked aids Q talking you Sometime before started but not as to Fontenot’s it Riklin, you to Mr. did tell Mr. Tan- was his “understanding” payoff that the *16 working you ner that had been on Riklin inwas appel- consideration for the buying guns? some machine granting probation lant’s to Fontenot. For Tanner, A Not to Mr. no. case, crucial element of the tapes the were indispensable. Additionally, the ma- [*] [*] [*] [*] [*] [*] jority points out that predicate the for the Tanner, Q you you Did tell Mr. who tape admission of the recordings into evi- working now for the know dence was accomplice established the Office, work- you Sheriff’s had been witness Fontenot. ing buying guns? some machine sir, A No I did not.
The failure of the trial court to accord appellant the adequate opportunity an Q you you Did tell Mr. Tanner that prepare his defense should call for a rever- guns would like to sell some machine sal. for narcotics? sir,
A No I did not.” impeachment admissible purposes. State, (Tex.Cr. Hoffman v. 514 S.W.2d The sought impeach this evi- App.); State, 482 Thrash v. S.W.2d 213 dence Tanner, with the of John State, (Tex.Cr.App.); Garcia an undercover detective with the Harris general 400 (Tex.Cr.App.). principle This County Department, Sheriff’s Narcotics Di- applies reviewing propriety vision. when of a testified, Officer Tanner on a bill of exception, ruling admissibility trial court’s to the that as he had met Fontenot in his capacity specific those acts acts when are first an undercover officer try- while However, ing sought purchase to be once a guns machine introduced. from Fonten- ot. testify Originally, concerning spe witness is allowed to pay Tanner was to for the events, guns machine marihuana, general principle cific acts with but Fonten- ot instance, later money. apply. oppos does not demanded While in Fon- In such pawn tenot’s shop during ing party evidence to negotia- may present these rebut the tions, Fontenot testimony. asked Tanner if evidence is Tanner rebuttal ad Such “was doing interested in a jewelry directly missible relates to the robbery because it on a salesman.” Tanner told credibility properly Fontenot he and is of the witness would be only interested after the machine dispel any impressions admitted to false gun negotiations completed. conveyed Fonten- initial jury to the testimo ot later specifically identified State, Charles Mize ny. Montemayor v. S.W.2d 93 as the target robbery. After this (Tex.Cr.App.); Binnion v.
robbery occurred, negotiations on the Randolph (Tex.Cr.App.); guns machine terminated. Tanner then ar- (Tex.Cr.App.); S.W.2d 311 Freeman ranged purchase some of the jewelry 726; 166 Tex.Cr.R. robbery. from the Mize Fontenot stated Redding 161 Tex.Cr.R. that he operation” was the “brains S.W.2d 712. and had up” robbery. “set the Mize After State, supra, appeal In an Montemayor v. Tanner, jewelry sold some he aggravated from a assault on conviction for subsequently arrested and indicted for police officer, a a conviction for we reversed that offense. impeachment failing testimony. to allow during Tanner negotia- testified that witness, Deputy complaining The Sheriff tions as purchase to the of the jewelry Menchaca, that at- testified Fontenot asked Tanner if he would be in- provocation. tacked him without On cross- terested in killing individual named examination, denied he had ever Menchaca Pope. agreed gun to furnish the fight been involved in a with one Oscar killing for the and stated he had several Later, Antu. was not al- defendant guns stolen pawn shop. present lowed to from Antu that evidence argued defense this evidence provoca- Menchaca him without had beaten impeach admissible to Fontenot’s deni- reversing, county jail. tion in In we als of these facts rebut the inferenc- held: es his testimony with jury left “It is fundamental that when witness Fontenot was “a fine Christian man.” The specif in a testifies about a criminal case trial court ruled defense counsel could event, ic fact or that fact or event is not introduce gun evidence the “machine more than minor detail of his very deal,” deal,” “dope or of arrange- may side testimony, opposing then the ment made kill Pope Fontenot to as they present testimony. rebut evidence to matters; but, were collateral the trial court goes directly to the impeachment Such ruled the defense could introduce the testi- *17 witness, a factor that in credibility of the mony concerning robbery. Mize the many critically affect the out may cases g., Daley The ruling trial was come E. v. apparently prosecution. court’s of the 932; principle State, based on general specific Tex.Cr.App., the 491 S.W.2d Si 15, State, acts 317 a witness are mons Tex.Cr.R. misconduct not v. 167
139
740;
State,
S.W.2d
argued
Freeman v.
166 Tex.
Nor can it be
that the error
626,
726; Redding
Cr.R.
v.
guilt
closely
harmless. The issue of
State,
53,
161 Tex.Cr.R.
274
712
S.W.2d
upon the
hinged primarily
contested and
(on
rehearing).
right
motion for
witnesses,
credibility of two
State’s
relative
impeach
prosecution’s
witnesses is
Fon
appellant.
and the
witness Fontenot
aspect
also one
of the Sixth Amendment
His testi
accomplice
tenot was an
witness.
right
See,
g.,
of confrontation.
e.
Davis
recordings
by tape
mony was corroborated
Alaska,
v.
415 U.S.
94
39
S.Ct.
testi
which he authenticated.
Fontenot’s
(1974);
Illinois,
Napue
L.Ed.2d 347
v.
360
mony concerning
interpretations
U.S.
79 S.Ct.
ally e., been allowed impeach, i. dis-
credit, the witness. ... OPINION ON APPELLANT’S MOTION A more particular attack on the witness’ credibili- FOR REHEARING ty is effected means of cross-examina- DALLY, Judge. tion revealing possible directed toward granted We have motion biases, prejudices, or ulterior motives of rehearing for leave to file his motion for they may witness as directly relate ground reconsider his first error personalities issues or in the case at hand. reads: The partiality of a subject witness is
exploration trial, at and is “THE ‘always rele- LEARNED TRIAL COURT COM- vant as discrediting the witness and af- MITTED ERROR BY REVERSIBLE fecting weight testimony.’ of his 3A REFUSING TO ALLOW THE WIT- Wigmore, Evidence, J. NESS, TANNER, p. 775 § JOHN AN UNDER- Evidence, 3. As prosecution stated in Wharton’s Criminal a witness for the who is a code- (13th Ed.): Sec. 435 accomplice, person fendant or or who is a prosecution threatened with criminal independent for an great “The cross-examiner is allowed lati- crime, testimony against whose questioning tude in a witness to ascertain his may by prom- the defendant be motivated testifying. particularly motive true where the defendant is This is leniency.” hope immunity ise or cross-examining
141 COVER DEPUTY SHERIFF WITH ness’s assertions about those facts. If COUNTY, THE sought HARRIS to be contradicted TEXAS SHER- collateral fact OFFICE, cross-examination, this safe- IFF’S TO TESTIFY A RE- is elicited on AS by say- guarding expressed BUTTAL is often WITNESS TO REBUT rule CER- or that ing TAIN that the answer is conclusive TESTIMONY GIVEN BY THE WITNESS, the an- must ‘take STATE’S NUKIE cross-examiner FONTEN- OT, swer.’ . DURING THE STATE’S CASE IN
CHIEF, FOR THE REASONS HEREIN-
with-
regarded
is to be
herein as
“What
AFTER
art,
SET FORTH IN THIS BRIEF.”
protean
in this
word of
‘collateral’?
by deter-
inquiry
The
is best answered
reconsidering
After
ground
of error
mining
are not within the
what
facts
we are confident
properly
that it was
decid-
term,
finding
escapes from
and thus
ed and
applicable
that the
clearly
law was
contradicting
prohibition
against
stated in the majority opinion
original
on
ap-
upon collateral facts. The classical
However,
submission.
appellant
cites
proach is
facts which would have
many recent
argues
cases which he
are in
independently provable regardless
been
conflict with our holding in this case and of
of the contradiction are not ‘collateral.’
“benefit;”
which he has not obtained the
we
general
“Two
kinds of facts meet the
agree that two of the cases he cites are in
test. The
that are
first kind are facts
conflict with
holding
our
in this case. We
relevant
to the substantive issues in
will therefore discuss these cases and re-
case .
state the law that we
applicable.
believe is
meeting
“The second kind of facts
The
ground
statement of the
facts that are
above mentioned test for
of error
important fact,
omits an
one which
would
not collateral includes facts which
recognized
was also not
in the dissenting
provable by extrinsic
independently
opinion
original
submission. The testi-
contradiction,
evidence, apart from the
mony
Fontenot,
appellant
wanted
impeach
disqualify
or
the witness.
“rebut,”
by
was not elicited
bias, in-
Among
showing
facts
these are
but was
by
elicited
the appellant on cross-
crime,
terest,
conviction of
and want
examination of
Fontenot. The
is
knowledge.
capacity
opportunity
complaining
permitted
that he
was not
showing
the witness
Facts
misconduct of
extrinsic evidence —that
is
(for
had)
which no
has been
conviction
of Tanner —to
contradict the
facts,
are
kind of
not within
second
he elicited from Fontenot.
collateral,
but are
if
on cross-
denied
The complaining
that the tes-
proved
examination cannot be
to contra-
timony of Tanner was not admitted before
dict.
jury;
appellant’s ground of error is not
“Finally,
fact must be
a third kind of
concerned with
right
his constitutional
.
contradic-
considered
.
. .
[T]he
confrontation and cross-examination of the
any part
tion of
of the witness’s account
Alaska,
State’s witness Fontenot. Davis v.
background
and circumstances of a
U.S.
S.Ct.
“The rule in such cases is
upon
recently,
More
the correct rule was stated
try
cross-examination to
applied
credit of a
in Arechiga v.
witness, only general
questions
(Tex.Cr.App.1971):
can be S.W.2d
put, and he cannot be
*20
asked as to
State,
“In Gatson
Tex.Cr.App.,
v.
387
collateral and independent
fact merely
65,
held
this Court
that when a
with a view to contradict him afterwards
witness is
on
cross-examined
a collateral
by calling another
danger
witness. The
matter
impeach
testimony,
even to
practice
obvious,
such
cross-examining
besides the
party cannot
then
inconvenience of trying many
as
collater-
contradict
the witness. The test as to
al issues as
parties
one of the
might
whether a matter is collateral is whether
introduce,
choose
cross-examining
party
and which the
would be enti-
could not
prepared
prove
part
tled to
it
to meet.”
as a
of his case
tending
plea.
to establish his
Britton v.
State,
In
265,
Drake v.
29 Tex.App.
15
State,
241,
744;
130 Tex.Cr.R.
(1890),
S.W. 725
prosecuting
attorney,
221,
1 Branch’s Annotated Penal Code
during his cross-examination of a defense
State,
Corpus
Sec. 200.
v.
463
See:
witness, elicited testimony with regard to a
(1970).
S.W.2d 4
collateral
permitted,
matter. He was then
part
“If
a
direct
as
of his
over the
objection,
impeach
defendant’s
evidence,
prove
tried
that Serna
this collateral testimony through other wit-
was in
hospital
particular
the state
on a
nesses. The Court held
impeach-
that such
date it would have been inadmissible.
ment
impermissible,
was
and reversed the
Court,
excluding
the inadmissible
judgment.
In the
opinion,
course of its
evidence,
way
proc-
in no
violated the due
Court reviewed the authorities as follows:
ess clause of the Fourteenth Amendment
“ ‘When a witness is cross-examined on a
to the
United States Constitution
al-
matter collateral to the issue his answer
leged by appellant.”
cannot be subsequently
by
contradicted
principal
appel-
The two
cases on which
party
putting
question.’
isNor
it
State,
Montemayor
lant relies are
v.
proper to allow a witness to be cross-ex-
(Tex.Cr.App.1976),
S.W.2d 93
and Binnion
amined
as to
matter which is collat-
State,
(Tex.Cr.App.1977),
v.
eral and irrelevant to the issue merely for
upon
which were also relied
in the dissent-
the purpose of contradicting him by other
ing opinion
original
submission.
In
(9th
evidence.
Ed.)
Whart.Crim.Ev.
Sec.
Montemayor,
prosecution
ag-
was for
y.
484;
State,
Rainey
473;
20 Tex.App.
gravated
peace
assault on a
officer. The
State,
202;
Hart v.
Tex.App.
Johnson
defendant contended he acted in self-de-
State,
609;
22 Tex.App.
S.W.Rep.
During
fense.
his cross-examination
de-
368;
Brite v.
10 Tex.App.
Stevens
counsel,
Menchaca,
fense
Officer
the com-
Tex.App.
39. What is collater-
witness,
plaining
knowing
admitted
one Os-
al and irrelevant matter within the rules
having
fight
car Antu but
ever
denied
above stated?
In his work on Criminal
with him. The defense later called Antu as
(9th
484), Wharton,
Evidence
Ed. Sec.
Mr.
witness,
but
the trial court refused to
quoting
opinion
from the
in Hildeburn v.
permit
testify
alleged beating
Antu to
to an
Curran,
[59,]
says:
65 Pa.St.
‘The test
he had received at
the hands of Officer
of whether
inquired
a fact
of in cross-ex-
proffered
Menchaca. We held that the
tes-
amination is collateral is this: Would the
timony
proper impeachment
and was
cross-examining party be entitled to
erroneously excluded.
prove
part
it as a
tending
of his case
plea?’
establish his
Binnion,
This test has been
In
prosecution
was for deliv-
quoted
adopted
by this court in
ery
Hart
of marihuana. The
chief wit-
State’s
denied,
15 Tex.App.
and in
agent
Johnson
ness was an undercover
who
Tex.App.
2 S.W.Rep.
during
coun-
cross-examination
defense
sel,
609.” 15
offering
S.W. at 727.
smoking
ever
marihuana
case,
denied, dur-
sell heroin to the
defend-
In the instant
defendant. The
subsequently
counsel,
ant
offered the
ing
cross-examination
defense
two other witnesses who would have con-
gun sale to Tanner
negotiating an unlawful
tradicted
testimony by
agent.
Cit-
man. These
asking Tanner to kill a
ing Montemayor,
proffered
we held that the
collateral,
involving
wholly
matters
impeachment
erroneously
by Fontenot for
alleged acts of misconduct
excluded
the trial court.
had. The
had been
which no conviction
refusing
permit
not err in
trial court did
We have concluded that Montema
col-
Fontenot on these
impeachment
yor and Binnion
correctly
were not
decided.
lateral matters.
cases,
In both
during
facts adduced
collateral;
is,
cross-examination were
*21
by appel
cited
The other cases
they would not have
independently
been
which this Court
lant involve situations in
provable regardless of the contradiction:
improper
had
concluded that
trial court
the facts were not relevant
substan
ly
by the defend
excluded evidence offered
case;
tive issues in the
the facts were not
bias, preju
tending
ant
a witness’
to show
independently provable by extrinsic evi
dice, interest,
testify against
or motive
dence, apart
contradiction,
from the
State,
(Tex.
him. Blair v.
511 S.W.2d
impeach
witness;
disqualify
the facts
State,
Cr.App.1974); Jackson v.
482 S.W.2d
part
were not
background
of a mate
State,
(Tex.Cr.App.1972);
v.
Simmons
rial
transaction about which the witness
(Tex.Cr.App.1977); Randle
ROBERTS, J., concurs in result.
PHILLIPS, J., dissents. CLINTON, JJ., partici-
ODOM and
pating. RAMIREZ, Appellant,
Manuel S. *22 Texas, Appellee.
The STATE of
No. 57350. Texas, Appeals
Court of Criminal
Panel No. 3.
May 1979.
Rehearing En Banc Denied Oct. 1979.