Coleman v. State
966 S.W.2d 525
Tex. Crim. App.
1998
Check Treatment

*1 determining police officer In reasonable, suspicion articulable

lacked a detention, temporary Appellant's conduct was

Appeals stated that activity as with with innocent

as consistent activity. single Id. at 593.

criminal review, contends

ground for State activity as innocent “as consistent with inappro- activity” construct

with criminal suspicion. determining reasonable

priate for opin- its issued

After the Court case, we held that this in the present

ion test for deter- longer is no viable

construct suspicion. reasonable Woods

mining (Tex.Cr.App.1997). petition for discretion- grant the State’s review, Appeals’

ary vacate the Court to that

judgment, this cause and remand point Appellant’s

court for reconsideration of in light

of error of Woods. J.,

OVERSTREET, dissents. COLEMAN, Eugene Appellant,

Lawron Texas.

The STATE of

No. 0491-96. Appeals of

Court of Criminal

En Banc.

April *2 Homeboys,” gang,

rival the “Junior carried shooting drive-by appellant’s out a in which younger seriously was brother wounded. On Alvarez, a November Victor Manuel Homeboys,” member of the “Junior was him- in drive-by shooting. self killed The Dallas County Jury Grand later indicted for the intentional murder of Alvarez. See 19.02(b)(1).3 § Tex. Penal Code Court, At in trial the 283rd District First, appellant put forth defenses. he two Dallas, Reagan, appellant. Robert J. for Alvarez, shooting admitted he he but denied Schaefer, Kimberly At- Assistant District Second, argued had the intent to kill. had he Dallas, Paul, torney, Matthew State’s Attor- if that he even the believed had intended Marshall, ney, Betty Assistant State’s Attor- Alvarez, kill guilty it should still him find ney, Austin, for State. only voluntary manslaughter, because had acted the under immediate influence of OPINION ON STATE’S MOTION passion arising shooting sudden from the FOR REHEARING brother.4 In furtherance both defens es, trial, for, appellant, during applied MANSFIELD, Judge, the delivered issued, subpoenas caused to ad testifican- opinion for the Court. reporters two on dum for the staff The Both Prosecuting the State and the State newspaper. Morning Dallas News See Tex. Attorney have in rehearing filed motions for 24.03(a). report Code Crim. Proc. art. The Believing this case. that now we erred ers, however, joint promptly filed a motion to submission, our opinion original on we with- subpoenas quashed have the on the basis of a that draw and substitute the follow- privilege.5 First Amendment claimed ing. The Court on hearing District held a originally granted petition the State’s quash shortly motion to after the State rest- discretionary for review determine wheth- guilt/inocence stage. ed at the At that hear- Appeals1 er Tenth Court had erred ing, legal elaborated holding that the Dal- 283rd District Court of motion, argument they had in their but made County appellant’s las had violated Sixth they presented Appellant no op- evidence. right compulsory process.2 Amendment posed reporters’ by arguing motion Ap- We hold now that the Tenth Court of their would be crucial to his de- peals did err. fense: of, As court is well aware the whole The Relevant Facts contribution of the this case defense the fall of awas member deals with the state of of the defen- mind dant, gang the “Oak Mafia” purpose subpoenaing Cliff street Dal- 24, 1993, las. they’ve On November members aof is the fact done an exten- 14, 19, 1920, 1923, ds. Supreme 1. The Texas transferred case 18 L.Ed.2d from Fifth Court of Tenth Appeals. § Court of See Tex. Gov’t Code 73.001. offense, appellant's At time 3. intentional prohibited murder was Penal Code Texas 2. Sixth The Amendment to United States 19.02(a)(1). § part, provides, ”[i]n Constitution in relevant prosecutions, enjoy all criminal the accused shall manslaughter right voluntary compulsory process statute was re- ... to have for pealed obtaining in 1994. right to witnesses in his favor.” This compulsory process applicable was made McMeans, Healey privilege Due states Process Clause of the Four- 5. No such exists. Washington (Tex.Crim.App.1994). teenth Amendment. carry (3) nas, failed had investigative work concern- sive amount (4) had therefore burden, the District Court we have gangs that ing the two so-called Amendment Sixth appellant’s violated They have done extensive involved this. (5) no harmless process, and witnesses, compulsory talking in talking to research possible. Id. at 86-87. analysis error was they’re well aware neighborhood, and *3 the atmosphere present at the the that was peti- the State’s subsequently granted We allegations against this defendant time that discretionary to review consider tion for And, therefore, it is the de- came forth. in Appeals had erred whether the Court of position they enlighten fense’s that analysis. See Tex. its Sixth Amendment atmosphere out there jury as to the this 66.3(c). now argues The State R.App. Proc. to state of mind relate back the that could (1) Compul- Sixth Amendment that under the defendant, very a critical which is of this Clause, the bur- appellant had sory Process case. issue this that the showing in District Court den of statutory or Appellant specific no sought cited would testimony of the witnesses he posi- provision (ie., of his impor- constitutional relevant and be both material cumulative) tion, he the two tant, but did offer evidence favor- merely and and not article, (2) defense, an one of subpoenas and written failed to able to his and 1994, 9, reporters, January edi- argues from the in re- Appellant carry that burden. (1) The arti- Morning tion of The Dallas News. ob- mere fact that he sponse that history prima and culture cle discussed a amounted to subpoenas tained the Homeboys,” because, “Junior and it included a brief materiality showing under facie killing of the 24.03(a), discussion Alvarez. application subpoena for a an Article include a sworn statement must hearing, At the conclusion of the the Dis- testimony sought would be of the witness quash, granted the motion to but trict Court defense, (2) at the hear- and material to the explanation it for its The gave no decision. he quash, to established ing on the motion jury appellant of later convicted murder expected reporters’ materiality of the imprisonment punishment his at for assessed they testimony explained what when $10,000 25 fine. years and testimony testify and how their about would points Appellant brought six of error his would relate to defense. Appeals. He brief to the Tenth Court of points argued in his first and second Analysis District Court had violated his Amend- Sixth right to Amendment right compulsory process when it The Sixth ment plain process “is in terms the granted compulsory quash.6 the motion to After a rather defense, right pres present Appeals right complicated analysis, the Court the facts as version of agreed appellant’s ent the defendant’s with Sixth Amendment may it claim, prosecution’s to the so District well as the judgment of the reversed Washington v. Court, truth lies.” where the the ease for retrial. decide and remanded (Tex. 1920, 1923, 18 14, 19, State, 80, 87 S.Ct. 388 U.S. Coleman 915 S.W.2d 87 (1967). 1996). Sixth Amendment specifically, 1019 More the L.Ed.2d App.—Waco however, (1) guarantee, First not Appeals held that no does Court of (2) testimony any existed, report- the attendance and privilege secure Amendment witnesses; rather, only guarantees it all had had the burden of show- question ers obtaining witnesses subpoe- process for compulsory quash on which to ing some basis theless, Appeals his Sixth rely addressed upon did not the Sixth Since Court, complaint. express in the District he did not no Amendment Amendment ap complaint preserve a for Sixth Amendment Appeals' action. propriety of the Court of Tex.R.App. pellate Proc. review. See 142, State, Hughes 151 878 S.W.2d see But 216, 33.1(a)(1)(A); Robinson v. 1992) (Tex.Crim.App. (requirement that error be denied, 222, (Tex.Crim.App.1991), 512 225 cert. denied, one), "systemic” 511 preserved is cert. 1246, 2765, 129 L.Ed.2d 879 U.S. 902 L.Ed.2d S.Ct. 128 U.S. (1994). Dawson, (1994); G. Dix & R. Texas Criminal (1995). § 42.02 Never Practice and Procedure testimony whose be Accordingly, judgment would both material and we VACATE the favorable the defense. States v. United and REMAND the case Valenzuela-Bernal, 858, 866-67, 102 may appel- to that court so that it consider U.S. remaining points lant’s of error. S.Ct. L.Ed.2d 1193 To compulso exercise the federal constitutional ry process right, the defendant must make a J., OVERSTREET, a dissenting filed

plausible court, to the trial sworn opinion, BAIRD, J., joined. in which facts, agreed evidence or the witness’ J., would both material and MEYERS, favor participating. not parte Scarbrough, able defense. Ex OVERSTREET, Judge, dissenting on (Tex.Crim.App. S.W.2d 173-174 *4 rehearing. state’s 1980); State, 474, Perez v. 590 479 S.W.2d denied, (Tex.Crim.App.1979), cert. 446 U.S. vote, original submission, by On a 5-3 we 937, 2157, (1980); 100 S.Ct. 64 L.Ed.2d 790 upheld Appeals’ holding the Tenth Court of State, 557, Spencer v. 503 S.W.2d 560-561 reversibly that the grant- trial court erred in State, (Tex.Crim.App.1974); Jones v. 501 ing quash appellant’s subpoenas a motion to 677, (Tex.Crim.App.1973); S.W.2d 679 Har newspaper reporters. However, of two after State, (Tex.Crim. v. din 62-63 granting rehearing motions for filed both accord, App.1971); Mejia- United States v. Attorney the District and the State Prosecut- Uribe, (8th Cir.), 75 F.3d 399-400 cert. ing Attorney, we now reverse ourselves and — denied, -, U.S. in quashing conclude that there was no error (1996); L.Ed.2d 97 22A C.J.S. Criminal Law subpoenas. Because I think that we had § 473 A defendant who has not had time, respectfully it the first I dissent opportunity an may to interview a witness to this Court’s sudden about-face. necessary by establishing make the showing submission, original On we held that sub- might the matters to which the witness testi witnesses, poenaed i.e. in this case the re- fy and importance the relevance and of those porters, have the burden “to come forward matters to the success the defense. See evidence, with either live or affida- Valenzuela-Bernal, United States v. 458 U.S. vit, support quash[.]” their motion to 869-71, at 102 S.Ct. at 3448. Were bur State, 491-96, (Tex.Cr.App. Coleman No. showing materiality den of and favorableness 7). 30,1997, slip April op. delivered at Thus placed defendant, not on the “frivolous and Appeals not Waco Court did err annoying requests [c]ould make the trial end holding reporters that because the failed to unduly less and on burdensome come forward with such evidence the trial Estelle, all officers thereof.” Ross erroneously granted court their motion to (5th Cir.1983). 1008, 1011 F.2d quash. original Id. we on As indicated sub- mission, holding quite is with consistent us, On the record before it is clear However, existing rehearing, law. on ma- a necessary did not make jority “modify” of this Court chooses to our showing. Although argued vaguely to the interpretation existing law. reporters District Court that the could “en lighten” “as atmosphere” rehearing, On this Court holds that Dallas “that could relate back to state [his] showing defendant has burden of materi- Alvarez, mind” when he shot he made no ality subpoenaed favorableness as to the plausible showing to the court that the re prospective testimony, “it witnesses’ and that porters’ actually testimony would be materi clear that not make the is did al and to either of his necessary showing.” defensive Coleman v. favorable showing, such a (Tex.Cr.App.1998) theories. Absent the Sixth (op. on S.W.2d require not Amendment did the District reh’g). previous holding What our compel testify. original Court submission that had Appeals holding The Court erred in other come with burden to forward evidence wise. of their motion to quash? majority defendant “[a] states McCULLOUGH, to interview opportunity parte had an who has not Ex Walter necessary may a make Jr., witness Appellant. to which the establishing the matters No. 501-97. testify relevance and might and the witness successes importance of those matters of Criminal However, light of Id. defense.” En Banc. required even not that witness is fact attorneys, such with or his talk the defendant April difficult, if not im- showing may quite prospective witness refuses possible, when subpoe- is That what the be interviewed. into court so get is the witness

na for —to If a defendant questioned. can be

that he prospective to interview a

has been unable

witness, specifically going know how he majori- And as the

what the witness knows? notes, argue to appellant did

ty enlighten

trial court that *5 atmosphere jury as in Dallas to the Obvi- relate to his state mind. back gang referring rival

ously, he was subject of the re- since the matter

activities gang such

porters’ newspaper articles was nothing

activity and violence. There was ap- cryptic about basis

mysterious or testify.

pellant’s for these desire activity, gang and the

This case involved rival articles thereon. had written reporters to being force the

Without able to interview, show- to an such the best

submit

ing appellant could make. acquire nec-

How does one the information

essary showing materiality to make the majority’s Pursuant

and relevance? obviously rehearing, not via com- subpoena. Perhaps crys-

pulsory process via psychic

tal ball or hot-line? case, of this and the light of the facts involving the

reporters’ newspaper articles I made gangs,

rival believe justify subpoenas, his

sufficient failed their that because I quash, their motion

burden entitled to have

believe was majority

subpoenas enforced. Because otherwise, I now concludes

of this Court

respectfully dissent.

BAIRD, J., joins.