Garcia v. State

168 arguing punishment

abuse case even if it an cutor was based involved extraneous offenses, immediately offense sus- and further because it collateral offenses was formed, particular under the the continued his prosecutor circumstances tained. When case, part gestae argument, the res the counsel he noted that charged offenses and so had the had argued only was interconnected merchants stated, part interwoven to be “I submit to of the transac- been hurt and then tions alleged. Certainly just were hurt I don’t think the merchants being burglary objection tried for no fact that in this case.” There was possessed and used continued argument, a credit card taken in this and it was not said burglary very day improper is prosecutor. next would be While it upon col- request punishment admissible evidence. be assessed offenses, 505 Klueppel lateral Appellant argues that the evidence observe (Tex.Cr.App.1974), we S.W.2d does perpetrator not establish that he is completed prosecutor never first of the burglary offenses since the victims argu- complained-of sentence first did not anyone see enter their rooms motel ment, objection sustained and proof that without such extraneous We further requested. further relief was offenses were inadmissible. cites Lan second objection note there was no ders v. (Tex.Cr.App. S.W.2d 115 cir- argument. Under the complained-of 1974), and Eanes v. cumstances, re- preserved for no error is (Tex.Cr.App.1977). Appellant overlooks view, do that funda- and we not conclude proposition well-established that the recent presented. Appellant’s con- mental error is unexplained possession all or part tention overruled. taken in a burglary items is sufficient grant- rehearing is The motion for State’s burglary. to sustain a conviction for Ber ed, judgment of reversal set aside nadett v. 166 Tex.Cr.R. judgment is affirmed. (1958); S.W.2d 747 Adame S.W.2d 545 (Tex.Cr.App.1963); Williams v. ROBERTS, J., concurs. 504 S.W.2d 477 Hester PHILLIPS, J., stated dissents reasons App.1976); 6A, Texas Digest, Burgla Vol. opinion. in original ry, cited. cases there CLINTON, J., dissents. proof instant case that very possession was in day next credit cards taken in the

burglaries was sufficient to show he was

the perpetrator of the extraneous offenses justified the admission of evidence the burglaries Appellant’s on that score. GARCIA, Appellant, Lopez Moses contention is overruled. In a second of error Texas, Appellee. The STATE prosecutor contends the committed reversi- No. 59621. ble by asking penalty error at the stage of the trial consider the extraneous Texas, Appeals of Court of Criminal assessing punishment. offenses in En Banc. prosecutor, noting appel 11, 1979. April only lant’s argued counsel had $150.00 Rehearing June Denied cards, been taken use of credit stated, Mr. Mussey “. . . You heard

say money that he had a stolen lot more ” objection prose- . The that the Houston, appel- for Teague,

Marvin 0. lant. Vance, Atty., Michael C.

Carol S. Dist. Cornelius, Kuhn, Woods, R. P. Ron G. Houston, Attys., Dist. and Robert Asst. Austin, Huttash, Atty., State’s State.

OPINION DAVIS, Judge.

W. C. appeal This is an from a conviction for murder. answered affirm- atively special issues submitted under Ann.C.C.P., and ac- Vernon’s punishment at cordingly, the was assessed death. sufficiency at either of the evidence phases of guilt-innocence punishment challenged. is not The record re-

the trial morning hours of early flects that 26, Larry appellant September Johns entered a 7-11 convenience store deceased, and the Houston. Connie Wilson attendants, Lewis, work- David were store night record further ing the shift. The appellant two threatened the reflects store attendants gun, appellant appeared with a and took them both and Johns to be ato back storeroom where he forced them three were at the scene. The intoxicated to lie face During down on the floor. nearby hospital. Ennis At the taken to the time, Larry emptied regis- Johns the cash hospital, appellant asked wheth- Alexander ter. Just before test, and Johns left er he would submit to a blood which store, appellant fired two shots at the Alexander testified that did. floor; store attendants as lay on the might learned that he when one shot head, struck the deceased in the arrested for DWI he told the officer that causing death, and the other shot went driving was not after all. At this time just into a door above Wilson’shead. Dur- driving, Johns admitted and stated that he ing the course Harold, of the robbery, John license. did not have a driver’s night supervisor 7-11, for the entered hospital and Officer Alexander left the the store and was also threatened with a report. returned to his office to make a He pistol by appellant. Ferris, yard then went a wrecker Appellant testify did not in his own be- towed, where the wrecked car had been and phase half at either of the trial. part searched the contents of the auto- mobile. He he and Ferris Police stated that In his first appellant Chief marihua- baggie Matthews found a contends that the trial court failing erred in na partially open inside a suitcase in the grant his motion suppress. Appellant radios, They car. also observed stereo re- filed his motion to suppress a written con- ceivers, speakers stereo assorted other statement, fession and an oral both made items in the of the wrecked station back by him while police custody. After a wagon. Alexander then to his returned hearing, the trial court denied the motion appellant office where he issued citations However, ruled both admissible. possession for the offenses of of marihuana record reflects that neither the written or permitting op- an unlicensed driver the oral statement was offered into evi- erate a motor vehicle. Alexander testified dence by the Therefore, State at trial. we gave appellant that at this time he his full must assume appellant complains .now warnings placed Miranda1 and then him in of the admission into pistol evidence of a jail. the Ennis which was found as a result of the oral statement by appellant. made McCollum, Wayne of Ellis Sheriff County, testified that was in his record shortly reflects that after the custody on'September offense was 27th. He stated committed Larry Johns returned to his records reflected that had apartments, gath- their together ered magistrate their been taken a at a. m. possessions before 8:30 and left in appellant’s Doris, car on Cindy with that date. Sheriff McCollum testified girl Johns’ friend. Doris teletype testified that that his office had received a from were head- ing north to appellant’s placing appellant. sister’s house in Houston a “hold” on : Michigan or Minnesota. stated got teletype “A. We from Houston At hearing on the suppress, motion to placing a man young hold on the Department of Safety Trooper Public How- just and I asked him did he know ard Alexander testified that he received a what the hold was for and he said report of an automobile accident in Ellis robbery for armed and then some- County at about 9:50 a. m. September thing about the wreck. And he told 26th. He arrived at the scene a short time gun me that —that his was hid in later and found appellant, Johns and Doris grass there where some the car at the scene of this one-car accident. He the accident. testified that he asked who had been driv- ing car, “Q. to which appellant responded you He told [Defense counsel]: that he had been. Alexander any prompting you? stated that without from Arizona, 436, 1602, Miranda v. (1966). 384 U.S. 86 S.Ct. 16 L.Ed.2d 694 any appellant present did anything I had At time knowing

“A. no idea the testi- about it. to controvert evidence whatsoever matter. on this mony the witnesses “Q. merely You asked what him you got hold for when the mes- Appellant appears to contend now sage? oral to Sheriff McCollum statement right. “A. That’s result, that, as a the fruits inadmissible and “Q. rob- And he said it was for armed e., statement, were also pistol, i. of that (cid:127) bery you ‘I’ll show where the Wong v. United inadmissible. See Sun gun is’? States, 9 L.Ed.2d 83 S.Ct. 371 U.S. Yes, “A. sir. (1963). oral We hold “Q. you any questions? Did ask him was admis- McCollum statement to Sheriff I “A. Then him the Justice took before involuntary nor sible at trial and was Peace, arraigned had him Miranda; therefore, taken violation again. of was pistol result obtained Sir, “Q. you any I asked did ask him properly admitted. questions? Ann.C.C.P., 38.22, 1(e), Vernon’s Oh, “A. I recall wheth- couldn’t offhand trial, that: provided effect at time of just er—it was a conversation of a “1. The or written confession oral jail. defendant made while the defendant “Q. Did he volunteer other informa- of confine- jail place was or other in tion to you you recall? of an officer custody ment or in the recall, “A. Not sir.” that I shall be admissible if: imme- Sheriff McCollum testified that he ****** diately magistrate, took appellant before a arraigned again. Ap- where was “(e) the de- orally made It be pellant deputy then led the sheriff and a of facts a statement fendant makes the site of the where automobile accident found to that are circumstances pistol had been left. true, be to establish which conduce finding of se- guilt, as the such pros- Upon by examination or the in- property, stolen asked creted or ecutor Sheriff McCollum: with which he states strument “Q. weapon Where was the found? was committed.” offense “A. em- some weeds down in a ditch bankment. However, language our spite in “Q. where you Did the defendant show statute, any state that before it is clear it was? accused, custody made while by ment Yes, “A. sir. interrogation, is admissi as a result accused, it must be “Q. against Did it was then have idea where ble made, and voluntarily before then? been shown have Arizona, compliance of Miranda taken “A. I didn’t even know where the auto- State, 573 in Ochoa v. supra. As we stated mobile had the wreck. (Tex.Cr.App.1978): “Q. (sic) you Do know there was weapon told confession, before defendant constitu- in order meet “A you? standards, voluntary must both tional Miranda. No, sir, compliance with and taken “A. I had idea.” which provision found be true con- assertions of facts 2. This amended to has since been guilt 3(a) accused. provide duce to establish the in Sec. that such oral statements Thus, appears under purpose impeachment, that oral statements are admissible for the (c) evidence electronically direct ac- Subsection are admissible as when are recorded accused, providing against statutory requirements. constitutional How- cordance with ever, requisites of 5th 3(c) provides waiver of voluntariness and Subsection Subsection rights (a) inapplicable met. are contain Amendment to statements which by tarily rights assured him requirement If it meets one waived the but not the other, Arizona, it is supra. still inadmissible. Miranda Castro Miranda v. See imposes rigid requirements in order to 562 S.W.2d confession, insure the (Tex.Cr.App. voluntariness of a Estes v. 507 S.W.2d requirements these must themselves 1974); Hughes v. 506 S.W.2d be satisfied in order for a confession to be (Tex.Cr.App.1974); Walker admissible.” (Tex.Cr.App.1973). we If assume that statement Therefore, we hold that State confession,

to Sheriff McCollum was a showing that the state met its burden of assume, holding, we without so that the appel and that voluntarily ment was made response statement was made in to custodi- intelligent waiver knowing lant made a al interrogation, we nevertheless hold it ad- rights he made of his Miranda before missible. before he took the officers statement and The voluntariness of the statement pistol. we have the location of the Since demonstrated the fact that the evidence meets constitution held that the statement shows that volunteered the infor- since, in admissibility, and al standards for pistol; mation about the it is uncontrovert- 38.22, the oral accordance with Article ed that a statement from concern- of a fact which statement was an assertion ing any details of the offense for which the and which led to the was found to be true placed him, “hold” was completely conduced to discovery of evidence which Further, unsolicited the sheriff. once he guilt, establish his the statement made the pistol statement about the and its appellant’s trial. have been admissible at location, appellant again taken before a ad would have been Since the statement magistrate was, where he for the third e., missible, it, pistol, i. the fruits time, rights advised of his in relation to a Wong were likewise Sun admissible. See charge. warned, criminal being After so States, supra. United appellant persisted in his desire to show the error, also Appellant, ground officers in this of Thus, the location pistol. of the totality circumstances, of, from a ad- complains of the but does not discuss the we appellant’s appellant conclude that in statement was a statement made mission of voluntarily 38.21, made. to See Article Ver- from Ennis custody during his return Ann.C.C.P.; non’s statement, see Roberts v. appellant 545 told Houston. In this S.W.2d 157 (Tex.Cr.App.1977). speak- officers that the stereo Houston wrecked automobile were obtain- ers in his Further, compliance in with Miranda v. burglary in a he committed “out on ed Arizona, supra, appellant had been warned However, Freeway.” Gulf the record does right of his against self-incrimination and was ever not reflect that this statement right counsel, his to prior once to his incar- Appellant admitted into evidence at trial. ceration twenty-four less than hours before also contends that the fruits of this state- statement, he made the and once less than suppressed. ment should have also been an hour before he volunteered the state- However, clearly reflects that the record ment Further, to Sheriff McCollum. imme- The there were no fruits of this statement. diately statement, after he made the he was appellant’s wrecked property items of from again magistrate taken before a again prior to already been seized automobile had rights warned of his as to that offense. Further, appellant’s appellant statement. Therefore, after being given his Miranda search challenge legality did not of the warnings three proximity, times in close subsequent sei- of his automobile and the persisted taking nevertheless property in either his motion officers to the zure of pistol. location of the circumstances, speakers Under the totality suppress of or at trial wherein stereo these it is clear that knowingly into evi- and volun- found in his car were introduced 174 Thus, appellant Jetter, improperly

dence.3 has excused shown er- was in violation Illinois, ror. 391 88 Witherspoon of U.S. (1968).5 In S.Ct. 80 L.Ed.2d ground This first error overruled. Moore v. 542 S.W.2d 664 unnecessary to App.1976),we it is held that error, ground ap In his second question where Witherspoon consider pellant that trial contends court com juror disqualified under prospective mitted charging fundamental error 12.31(b), Accord Sec. Penal Code. V.T.C.A. jury pun on the law of at intoxication (Tex.Cr.App. Burns v. phase ishment trial. The record re 1977); Hughes v. 562 S.W.2d flects that when the court submitted to (Tex.Cr.App.1978); Bodde jury special required issues as (Tex.Cr.App.1978). Section S.W.2d 344 Ann.C.C.P., charged Vernon’s it also 12.31(b)provides: jury voluntary intoxication could jurors informed “Prospective shall be mitigation be punishment. considered in imprisonment a sentence of life Code, See V.T.C.A. Penal 8.04. The Sec. conviction of mandatory death is on objection record charge; reflects no to the shall felony. prospective juror A acquiescence objec in and of an absence juror serving disqualified be from charge tion to the waives all but fundamen man- oath that the unless he states under tal error. Duffy v. datory penalty imprisonment death or Rummel on life will not affect deliberations charge (Tex.Cr.App.1974). S.W.2d 630 any issue of fact.” clearly case not instant funda voir during The record reflects mentally erroneous. instruction to the juror Lucille dire prospective examination jury very intoxication was favorable general opposition expressed Jetter her appellant, permitted since During penalty. the examina the death mitigate punishment answering spe tion, prosecutor asked: ground cial This of error over issues.4 feel- “Q. you deep-seated your Do think ruled. about, talking ings that arewe In his third would make it where penalty juror, give be able to the death prospective contends one Lucille religious scruples against admissibility its No infliction. 3. A further discussion speakers constitutionally put the stereo occurs can defendant ground of error number fifteen. tribunal so selected.” death at the hands of a further The Court stated: 37.071, supra, accordance with Article unambiguously states “Unless a venireman jury charged: automatically against the would vote that he you beyond “Do find from the evidence a punishment imposition matter no reasonable doubt that the conduct the de- reveal, simply might cannot trial what the fendant, Garcia, Moses that caused the death position.” that is his be assumed that deliberately of the deceased committed Holman, Boulden v. elaborated in The Court expectation and with the reasonable that 478, 1138, 22 L.Ed.2d 394 U.S. S.Ct. death of the deceased or another re- would (1969): sult?” entirely person and, possible who that a “[i]t has ‘believe opinion against’ you or does who beyond “Do ‘a fixed find from a the evidence might capital punishment probability never- in’ reasonable doubt is a that there defendant, Garcia, juror perfectly abide that commit criminal acts of violence as a Moses would would able theless by existing conscientiously that follow law—to society?” continuing judge constitute a threat con- and to a trial instructions of fairly imposition sen- of the death sider Witherspoon, Supreme Court particular in a case.” tence United States stated: Further, Georgia, 429 U.S. in Davis v. “Specifically; we that a hold sentence (1976) reaf- L.Ed.2d339 the Court S.Ct. death cannot be if the that carried out Witherspoon that held doctrine and firmed the imposed by or recommended it was chosen single penalty venire- if a no can stand death excluding simply veniremen for cause be- doctrine. in violation that excluded man is general objections cause voiced to the penalty expressed death or conscientious your guess would “I if all the evidence was affect decision as to whether ques- Oh, or not to answer the I don’t know. I there I could. yes tions or no? just I just don’t think I could. —I “A. Yes. don’t think I could. her qualified and that she was properly that doctrine. reflect that she pellant’s ground trial court. Although we do not need to reach the issue ecutor, she generally. During questioning by under nation, about the “Q. “A. Yes.” Thus, it is clear that Jetter’s At the beginning of the voir dire exami- Witherspoon And death penalty, you would answer don’t feel life. Jetter imposition then stated that she could questions you under Section expressed was also of Jetter’s think, like in order to overrule error, no so he would therefore, you disqualified her reservations the record does excused disqualification could 12.31(b),supra, death answer since give penalty by under pros- not, you dis- get ap- “Q. “A. “A. “Q. ^[*] Then we are back know, That death. could “Well, part? although and that is the somebody person assessing I could that there is a choice. eral No, That is the juror, that is what I said the first time understanding ^[*] answering is what do that. I couldn’t do it is like I could life—I could life. give it would be else yourself, ^[*] way you to, I could person way the two I ^[*] stick with? you you again feel. I feel. you death, being couldn’t take life. say said, punishment, if ^[*] to the proper questions, you were the right I don’t life or ^[*] were gen- off I herself, special “Q. answer the way issues in a . . . mean would that so that the death penalty imposed. no, could be automatically vote Upon defense, by case, examination Jetter person so that the would re- position wavered in her stated ceive life? under some facts might join she be able to right.” “A. That with jury assessing penalty. the death court, Upon further examination Upon further examination she position Jetter reaffirmed her she

reaffirmed that she could not vote so as to impose could not ever vote to the death impose the penalty. death She stated: Thus, penalty. the record reflects that “A. my That is feelings. true I couldn’t properly trial court sustained State’s give it. I mean it Jetter; challenge for cause to there was “Q. . . . you, yourself, Could Witherspoon Ap- violation of the doctrine. case, . . . answer the pellant’s third of error is overruled. questions two yes thereby as-

sure the defendant would receive through eighth In his fourth the death penalty sign your sig- grounds contends nature on space designated sustaining the trial court erred in ‘foreman’? challenge prospective State’s for cause to “A. I know I you juror said no to then. I said Orth B. Article 35.- Carlton under

yes way sounded, 16(10), 35.16, because of the Vernon’s Ann.C.C.P. Article but I—if it would pen- supra, be the death provides: alty and grotesque make the case so “(a) challenge objection A is an for cause person it, that the deserved but it is juror, alleging particular made to a you say, signing like my name to it incap- some fact which renders him and giving penal- the man the death jury. able or unfit to serve on the ty, against that is my feelings. challenge A may for cause be made ^{[*] [*] [*] [*] [*] [*]} by either the state or defense 176 face and injuries appellant’s various to

for rea- following one of head, black consisting badly sons: of “a swollen is it serves no tion juror Carlton. filled out the juror information dire court. Moore v. court abused difficult as the or words. He blanks and had left information off of some Brock dez v. case, he did not understand the though blanks because he had trouble 1977), charge, he he could read and understand the court’s the voir dire 1974). This contention is overruled. within the abused supra. Upon would have of error four State’s Cr.App.1976); ton under Article State’s Appellant Appellant The record unconstitutional, discriminatory was answered put examination Carlton we ^[******] v. reaffirming the State, It is well settled that the write.” “10. challenge he once challenge its State, some cannot stated that if the first contends sound discretion legitimate difficulty discretion in next contends examination its discretion That 506 S.W.2d reflects that through eight reiterated Abron the facts filling 556 he stated information juror 35.16(10),supra. say could for cause to adversely S.W.2d prospective he cannot out the card and that information that he 542 S.W.2d664 holding Hernandez v. ends. This conten over and presented understanding 884 must 309 in that had during spell sustaining questions. charge to sustaining are overruled. (Tex.Cr.App. thought (Tex.Cr.App. appellant rest this statute of Hernan 523 S.W.2d prospective juror trial court incorrectly conduct the names card. over that the trial read or and that card, the voir Grounds were as largely wrong (Tex. Carl trial Al- in it. tified that he had been told and blue and red which are on the and other bailiffs swollen morning none of App.1974); Bradshaw had them. sound discretion tion; duced?” The court further discussion its have a ly be counsel for App.1972); Cooper there our tion. last grant been begun record State, so taken occurrence fore this non’s shaw v. trial Guerrero Cooper Bailiff have it glad presentation.” had; motion, been beaten night before cuts and court abused wearing large (Tex.Cr.App.1972). he Ann.C.C.P., is a Before the such color 549 S.W.2d does The court to hear from right v. stated, however, by surprise that a fair trial cannot A continuance after Jim Duvall testified authorized showing taken, Court, clearly State, during the trial the eye, which are picture there a motion is not error side motion is abrasions on his supra. Upon the by them right eye and an we when visible overruled picked appellant His of an abuse of However, its discretion appear you replied some inmates sunglasses. Duvall tes- taken cannot guard stated, Honor S.W.2d saw his his appellant’s desire (Tex.Cr.App.1977); on the court. addressed and have . some a “He can brought face which appellant’s nowhere clearly could photograph mind, later, hold that . supra; that when appellant “May to, the trial facial applicant unexpected question of failure . record be discretion. lower in the Ewing v. ” abrasion separate (Tex.Cr. injuries. denying back it intro- certain- up that visible, we, to the unless condi- Brad I will Ver mo- had has jail has lip, in, he on or simply unable In his Court is ninth motion. This contention, appellant’s contends that re- the trial court erred in review the merits ap there fusing grant oral since in the record does appellant’s motion nowhere injuries or pear during photograph continuance of trial made course thereof, description guilt reflects further sworn innocence. record that, showing that has made no jury, out of of the de- since presence the he There no evidence fense counsel the court was harmed. asked to observe State, jurors (Tex.Cr.App.1970); record the noticed S.W.2d injuries (Tex.Cr. or that way were in af Burrell v. during fected their appel deliberations App.1969).

lant’s appearance phase at either of the related contention Appellant’s circumstances, trial. Under these we hold # 30 was inadmissible that State’s Exhibit has failed show that the proven. proper custody as of was not chain trial denying court abused its discretion Green, pa since Dr. contends that the motion. See Ewing supra; v. thologist from who retrieved bullet Cooper supra; Guerrero v. head, the admis testify, did not deceased’s supra; State, supra. Bradshaw v. This predi of sion into evidence the bullet ground of error is overruled. testimony Dr. hearsay of upon cated grounds In his next two related of is without Jachimczyk. This contention error, appellant contends the trial merit. court admitting erred in evidence into V.A.C.S., 3737e, provides: autopsy report of Dr. Green Shelton “Competence of record as evidence in admitting erred into evidence record of memorandum or “Section 1. A bullet, State’s Exhibit Number as shall, act, an or condition insofar event proper chain of custody had not been estab relevant, competent as be evidence lished. event or the occurrence of the act or trial, At Joseph Jachimczyk, Dr. Chief if the of the condition existence Medical County, Examiner for Harris testi judge that: finds fied from autopsy report the contents of an (a) regular course It was made on the prepared by deceased Dr. Shelton business; Green, working who been under his (b) regular of that It was course supervision. Since preparing the autopsy representa- employee an business for or report, Dr. Green had moved to Nevada. personal tive of such business with Dr. Jachimczyk morgue testified from the act, knowledge of such or condi- event ledger book that a bullet was recovered such or rec- tion to make memorandum from deceased, skull which bullet ord information thereof or to transmit was labeled with Dr. Green’s initial and a or to be such memorandum included number, (Detec and thereafter delivered to record; tive) H. A. Zoch. The record further re (c) at or time of It was made near the flects that Dr. Jachimczyk testified from act, or reason- event or condition report contents the autopsy without ably objection soon thereafter. by the defense.6 his testimony jury, before the Dr. Jachimczyk identity stated that mode of Section 2. The autopsy reports prepared by working preparation others of the or rec- memorandum under supervision his kept provisions were in his office ord in with accordance care, under custody (1) Appel paragraph may proved by and control. one be entrant, lant’s testimony contentions that it was error for this of the custodian pathologist testify report though qualified from or other witness even that, therefore, another report personal knowledge may not have hearsay inadmissible as previously have to the of such various items or contents been consistently rejected by this Court. memorandum or record. lack of Such Denney personal knowledge shown may App.1977); weight credibility Cato 534 S.W.2d 135 of the affect the Whitfield memorandum record but shall not S.W.2d 502 (Tex.Cr.App.1973); admissibility.” Cuevas v. affect its autopsy

6. The report purposes record reflects that was admitted evidence into for the record, jur presence out of Jachimczyk morgue grounds Dr. In his next two testified from his ledger erred book that the trial court appellant that retrieved contends bullet admitting extraneous of from the head and evidence of of the deceased delivered punishment of the trial. phase to H. A. Zoch.7 He fenses further testified that at punishment hearing on ledger entries in are at The record at the book made operated a Rangel transpired, near the Armando time that events reflects that acquainted He person lounge made Houston. having personal a knowl- fre edge appellant used to transpired, appellant, of the events which with as which that He testified regular quent entries are his establishment. made course September lounge was vandal morgue. business in the on 25th the speak burglarized ized and that stereo and bring testimony This was sufficient to that He further stated ers had been stolen. the evidence the morgue ledger from book his day appellant he loaned on that had within the Exception Business Records he afternoon truck and that later that the Hearsay Broyles Rule. See v. bur his house had also been learned that 144 (Tex.Cr.App.1977); S.W.2d Lawless a tool pistol, that his glarized. stated v. 241 (Tex.Cr.App.1973); S.W.2d bag been money in a bank had box and Coulter v. 494 S.W.2d 876 Exhibit identified State’s stolen. He then App.1973); Mahaffey v. 471 S.W.2d speak by police, pistol # recovered 17—the 801 (Tex.Cr.App.1971). The information car, a appellant’s ers found in wrecked competent was thus evidence of the first person, bag appellant’s bank recovered from link custody in the chain of and furnished burgla stolen in as which had been proof sufficient thereof. Grounds of error ries. ten eleven are overruled. Doris, appellant had been with Cindy who ground error, ap In his twelfth during attempt their Larry Johns pellant that erred contends the trial court state, leave that the stereo testified in refusing grant his motion in limine speakers had in their car before been regarding the testimony of Dr. Jerome money bag accident and identified punishment Brown at the trial. phase one carried with him appellant which Specifically, he Dr. contends that Brown’s testified, objec- without date. She also testimony, upon based an examination of tion, he by appellant that to an admission appellant, right against violated “they got speakers money when This was ful self-incrimination. contention burglarized joint.” ly Livingston discussed and overruled in court Appellant now contends that (Tex.Cr.App.1976). 542 S.W.2d 655 testimony of inadmissi- permitting erred in holding This Shippy was reaffirmed in agree. ble We do not extraneous offenses. State, 556 246 (Tex.Cr.App.1977) Byrd and Von 569 S.W.2d pro Vernon’s Ann.C.C.P. (Tex.Cr .App.1978). phase of a punishment vides that at the trial, may be “evidence murder Further, the record reflects Dr. that the court presented as to matter Brown testified that before interviewed (emphasis sentence.” deems relevant appellant he not told that he did statute, added) we stat construing this anything have to talk about he did (Tex. ed Jurek wish “anything might to and that he said Cr.App.1975)that: held against him in Dr. also court.” Brown determining “In the likelihood presence jury testified out of the continuing threat be a defendant would had understood nature wheth- against society, could consider charge him death crimi- significant punishment. Appel- was a er penalty possible the defendant range lant’s nal could consider twelfth record. It error overruled. only custody 7. This is which attacks. link in the chain of

179 error, ground of severity In his fifteenth prior of his criminal conduct ” added) . (Emphasis erred the trial court appellant contends that punish Thus, admitting at the in into evidence the trial court wide has discretion in admitting money bag, punishment the phase speakers evidence at ment phase of a capital illegal murder trial. See Ghol pursuant to an they were obtained State, (Tex. son Ross v. 395 542 S.W.2d objection on No such search and seizure.8 Cr.App.1976); State, Livingston v. 542 at trial or at ground this was made S.W.2d 655 (Tex.Cr.App.1976); Moore v. suppress. There hearing on the to motion State, 542 S.W.2d 664 Le fore, for review. nothing presented State, Robinson v. 548 63 S.W.2d (Tex.Cr.App. jeune 775 v. 538 S.W.2d App.1977); Brown v. 554 677 S.W.2d 496 1976); 504 Johnson v. (Tex.Cr. App.1977). Weatherspoon v. (Tex.Cr.App.1974). In upholding constitutionality of the (Tex.Cr.App.1973). 501 909 Texas death penalty procedures, the Su- preme Court of the United States wrote: grounds of final two requires “Texas law if a defendant court erred that the trial contends has capital offense, been convicted aof allowing John Harold Connie Wilson trial court separate must conduct a hearing punishment. testify at the sentencing proceeding before the same the admission of their contends that jury that guilt. tried Any the issue of of concerning the circumstances testimony relevant may evidence be introduced at witnesses, offense, were which proceeding . . . the Texas cap- “retry” its case. State was allowed sentencing ital procedure guides and fo- Appellant’s that this was error contention jury’s cuses the objective consideration of without merit. The circumstances of particularized circumstances of the are surrounding offense it and the facts individual offense individual of- probative is regarding special fender evidence impose before it can a sentence of . (Tex.

death . . Duffy What is essential sues. v. 567 S.W.2d 197 is that have possible before it all rele- Cr.App.1978); Brock 556 S.W.2d vant information about individual de- testimony This (Tex.Cr.App.1977). fendant whose fate must determine. and, therefore, probative, relevant admissi Texas law clearly assures that all such ble. This error is overruled. evidence will (Emphasis be adduced.” judgment The is affirmed. added) Texas, 262, Jurek 2950, U.S. S.Ct. ROBERTS, Judge, concurring. (1976). 49 L.Ed.2d 929 Nothing supra, Article requires While I the affirmance of concur in that there be a final conviction for an ex- judgment, approach differently I would traneous offense to be admissible at the question unadjudicated, proving extrane- punishment phase. Clearly, pri- evidence of “sentencing proceeding” ous offenses in the or offenses range falls “prior within the of a case. criminal “prior conduct.” Such criminal majority concluding is correct conduct” is clearly relevant.to jury’s 37.071(a) Article the Texas Code of Crim- special two, deliberations on issue number inal Procedure admit such offenses. submitted to the jury punishment at the This rest on more than conclusion should phase. Therefore, we hold that the trial emphasized phrases two from Jurek court did not admitting err in into evidence (Tex.Cr.App.1975) 522 S.W.2d testimony concerning burglary. Appel- Texas, and Jurek 96 S.Ct. grounds lant’s thirteenth U.S. and fourteenth error are (1976). overruled. 49 L.Ed.2d 929 Appellant complains also items were admit- admission record reflects that these However, pool into evidence of some balls. ted into evidence. evidence, provided the 37.071(a) clusionary Article Texas rules of Code opportunity a fair Criminal Procedure was added defendant is afforded Senate hearsay Texas Texas statements.” amendment H.B. 63rd rebut Legislature. “Comment, this sentence Legislature Bill to omit See House chose 200,” must evince (1974). 37.071(a), from and this Houston Law Review 410 evi- rules of general The its intention that the amendment seems to have been based proceed- on in these apply Section 921.141 of Florida An dence continue to Statutes (Supp.1979), ings. passed notated which was hast ily special Legis by a the session of Florida very of this bifurcated But the choice lature, response called in to Furman v. evi- an intention that procedure also evinces Georgia, 408 U.S. 92 S.Ct. inadmissible at dence that would be (1972). L.Ed.2d 346 Levin See Erhardt & pro- admitted in these guilt stage should be son, Legislative Response “Florida’s to Fur- of ceedings. dangers This is so because man,” 64 Journal of Law Crimi Criminal & of, to, of the issue prejudice confusion statute, nology (1973). in Florida of consti- guilt passed, have and because

turn, largely copied is 210.6 of from Section give capital jury compulsion to tutional the Model Penal Code. The to comments possible. as is as much relevant information provision this appear source in Tentative justify would agree I that this intention can (1959), light Draft No. 9 and shed on offenses, even the admission extraneous question. (If Legislature unadjudicated ones. convictions, to

The drafters of the Code wanted to limit the evidence Model Penal capi- a as it done in procedure chose bifurcated trial for it could do has 3(a), tal of Criminal inescapable cases to “an of the Texas Code avoid dilemma Section Procedure.) upon is pass called to on sentence at it the same time that reaches a verdict as of the issue. But cannot be end this guilt to or innocence. Either determi- For, dangers of confusion addition to punishment nation of the be based on must why a reason prejudice, there is third bearing less than all the that has evidence a proof of extrane- law has excluded evidence issue, example previ- such for aas Wigmore, J. surprise. ous offenses: unfair accused, ous criminal evi- record or And, Evidence, 1940). (3rd ed. Section dence must be admitted on the compulsion to addition to the constitutional sentence, though it relevant to in- relevant give capital jury as much be as prejudicial excluded irrelevant or with possible, there is constitu- formation as respect guilt to or . innocence alone. give de- tional to compulsion . obvious solution . . to bifur- (and course) of process due fendant due proceeding, abiding by cate the strictly law. should not be construed Article 37.071 is a rules of evidence until and unless there unadjudicated, ex- authorizing proof of conviction, guilt but once has been deter- as an unfair if this comes traneous offenses opening further mined the record Notice, a funda- surprise the defendant. information that is relevant sentence.” be process, must mental due element of Institute, American Law Model Penal Code unadjudicated, Allowing proof of provided. (Tentative 1959). 74-75 Draft No. 9 allowing comes close extraneous offenses “prosecutions” of the defend-

The cited Penal one more sections of the Model Simple sentencing proceeding. accomplish ant Code and the Florida statutes giv- be the defendant requires opening by providing, this of the record fairness to offer intends the State “Any such which the court deems en notice evidence of- received, unadjudicated,1 extraneous probative may proof be have value fenses, coun- and his regardless ex- the defendant admissibility under the so that its easily prior counsel. present are discoverable victions Proof convictions should unadjudicated, notice, ex- problem be said for The same cannot traneous offenses. the defendant should convictions, aware of such and records of con- investígate response.2 prepare sel can judges should of this no-

Trial be mindful problem tice when the “wide exercise admitting mentioned discretion evidence” majority; may this discretion transgress on state and federal constitution- rights.

al case, record shows appellant and notice his counsel had actual proof of the State’s intention to offer extraneous offense. a mo- Counsel made Dawson, Rosharon, appel- A. Richard limine, tion in and he seem to be did not lant. surprised. For these I can concur reasons Vance, Douglas Atty. Dist. Carol S. in this affirmance. Houston, O’Brien, Rob- Atty., Asst. Dist. M. Austin, Huttash, Atty., ert State’s

PHILLIPS, J., joins opinion. in this State. DALLY, ONION, J., J. P. Before

OPINION

DALLY, Judge. post-conviction writ of habeas This is a brought under Art. corpus proceeding parte V.A.C.C.P. Ex Davis SCOTT. petitioner contends he is entitled

No. 58184. he did not have effective relief because Texas, Court Criminal Appeals of assistance of counsel when he was convicted 192,328 Panel No. 2. in the 185th District Cause No. 12, 1973. County Court of on October Harris May 1979. petitioner was convicted that cause intent burglary offense of with the primary offense commit theft. pun- prior two enhanced convictions imprisonment ishment life was assessed provisions under the of Art. V.A.P.C. (1925). Although appellant pled offense, guilty primary to the before stipulated, punishment phase at the trial, that he had been convicted prior just alleged offenses were the indictment. alleged

It in the indictment petitioner been of- convicted for the 70,695 in robbery fense No. Cause Criminal District Court No. 2 of Harris 26, 1953, November after County on jurisdiction Georgia At requires least one See Section 27-2053 of such notice statute. Code Annotated.

Case Details

Case Name: Garcia v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 11, 1979

Citation: 581 S.W.2d 168

Docket Number: 59621

Court Abbreviation: Tex. Crim. App.