*1 LIVEOAK, Appellant, Leonard
v. Texas, Appellee. STATE
No. 04-85-00063-CR. Texas, Appeals
Court of
San Antonio.
Aug. 1986.
Rehearing Sept. Denied 1986. *2 Leon, Bayless, San Paul Samuel
Jack Antonio, appellant. for Rio, Lee, Atty., Del Dist. Thomas F. appellee. DIAL, ESQUIVEL, CANTU
Before JJ.
OPINION DIAL, Justice. appeal from a
This is an manslaughter voluntary in a conviction PENAL TEX. pursuant to prosecuted case 1974). (Vernon 19.04 ANN. CODE § 23, 1981, (Vernon Liveoak September On Leonard 35.12 CRIM.PROC.ANN. art. Ingham, Supp.1986). killed B. (appellant) shot and Ben III, a scuffle auto. prospective jurors in question Ingham claimed he shot in self- were weekly panel members choking Ingham because was him defense jury duty been called for Verde Val trying Ing- as drive County. The trial sponte court sua ex *3 ham’s residence. The deceased suffered jurors cused both further from service one, a two bullet wounds: fired from dis- upon ascertaining prospective these that feet, approximately tance of four entered jurors not could read and write.2 This is through the left back chest and exited the provisions accord the May of ofAct chest; second, right and fired from a the 17, 1983, 134, 1, Tex.Gen.Laws, ch. 1983 § feet, approximately of two entered distance 617, 617-20, Spec. Local repealed by & Act ribs, through scrotum below the exited the 13, 1985, 480, 26(1), of June ch. § thigh. Appellant then and re-entered the (formerly Tex.Gen. Laws codi pushed of car the deceased out the and fied at TEX.REV.CIV.STAT.ANN. art. away drove from the scene. He called the 2133) and its successor CODE TEX.GOV’T reported he sheriff’s office and that killed (Vernon Supp.1986). ANN. 62.102 No § Ingham. Deputy Bobby Sheriff Harris ar- error is shown. Sheffield, appellant rested in a cafe in Tex- Appellant alleges next that “the court deputy gun as. The also removed a refusing require erred in to the court re- he but had no warrant. porter to take notes of the court’s oral grand jury appellant The for vol- indicted venire,” qualifications of the which he untary manslaughter.1 juryA found him pursuant mandatory claims is TEX. guilty punishment assessed his and at ten 40.09, CODE CRIM.PROC.ANN. art. 4§ years $10,000.00. a confinement and fine of (Vernon Supp.1986). Appellant orally re- The jury further recommended that the quested reporter the court record the suspended confinement be be qualifications of the venire. The tri- entire placed probation years. for ten al request permitted court denied the but deadly weapon found used a reporter by the court to stand to make a so, during the commission of the offense as any juror appellant record of the excuse of probation, of condition the trial court question. desired to ordered that be for confined not 40.09, Article section mandates sixty days, less than nor than one more request party either “[a]t (shock twenty days probation). hundred reporter *4 prosecutorial miscon- panel
jury based coming in to assist there would be someone duct. actually named that prosecution the and Thereafter, i.e., person, William Bowden. dire, ju During prospective the voir appel general panel, to the in his statement Valdes, ror, expressed a bias about Mrs. panel attorney questioned the of lant’s trial court firearms and the the use of inquired knowledge parties the and of Before the of her for cause. excused her, her questioning not that of William and while numerous names but excused bias, prosecutor court, the particular this Appellant, about the and the Bowden. following: asked the were, properly advised opinion, in our jury Valdes, surprise you prosecutor to special it Mrs. would of the existence of legislature of dire. beginning the State of voir know name at the his a similar bias? pan of Texas has inquire State as to the Appellant’s to failure acquaintance with knowledge of and el’s objec- appellant’s sustained The trial court by us as cannot be considered Mr. Bowden jury question and ordered tion to for the right inquire of his a denial not consider disregard and ascertaining possible appellant’s oral of purposes overruled The trial court panel perempto based on or for a quash jury challenge for cause motion to for a contends question. Appellant improper challenge. No abuse of discretion ry inflammatory court is the action of the trial fifth appellant’s We overrule shown. panel designed prejudice ground error. After claim of self-defense. regarding his the court’s refus- complains of Appellant conclude we cannot examining the record into evi- suppress the introduction al to any way remarks prosecutor’s that the his auto gun taken from dence of a or to that of juror’s bias to the contributed aof war- arresting officer without benefit panel. juror on the prospective any other justification is no there rant. He contends ground of fourth appellant’s We overrule weapon, of the seizure for the warrantless error. weapon into it is error to admit is error contends it Appellant next of sufficient evidence, the error is and that special prose permit a trial court to for the dis-We warrant reversal. magnitude to enter the attorney to the district cutor for agree. had been dire examination case after voir appellant arrested deputy The sheriff impaneled completed and the using the tele- a cafe while argues the absence Appellant sworn. shooting. Appel- shortly after the phone dire ex voir prosecutor special legality of the complains not of the lant right his to ex deprived him of amination subsequent search arrest but as to whether jurors prospective amine weapon the seizure auto and prosecu- knowledge special they had necessary impoundment his auto. It therefore to set to ensure protection pertinent out the facts to this contention. the vehicle and its contents. Bena- State, (Tex. vides v. 600 S.W.2d arresting The officer testified after Crim.App.1980). A subsequent inventory he handcuffed in the restaurant pursuant was made to established non- giving appellant and without the Miranda criminal, safekeeping procedures. warnings, he asked what he gun. done per- with the The court did not event, In any appellant admitted appellant’s mit response objection. after shooting the deceased with “the .45 calibre officer escorted outside and weapon that’s here in Appel evidence.” placed him in the officer’s auto. The offi- lant’s direct presenting while auto, appellant’s cer then drove next to any possible defense cures error in the auto, locked, walked over to the found it gun question admission of the under the weapon and noticed a open view doctrine of curative admissibility. See front seat. The officer returned to his (Tex. Preston v. 481 S.W.2d auto and keys asked for the to Crim.App.1972). auto. indicated the Accordingly, we hold that the trial court keys pocket, were in his and the officer did not err in overruling appellant’s motion removed them jacket, from his went back suppress and admitting gun into appellant’s auto, it, unlocked removed evidence, and we overrule sixth weapon seat, from the front locked the ground of error. auto, arrangements made for a wrecker to Appellant contends the trial court erred pick up impound and drove *5 in admitting statements the deceased made appellant to the sheriff’s office in Sheffield. to Kelly Joe Luce and John shortly before At arresting trial the officer identified the shooting completing phone and after gun gun as the same he removed from appellant. conversation with The trial appellant’s auto. The State offered the permitted testify witnesses to as gun evidence, appellant into objected, but to the deceased’s statements to them made failed ruling to obtain a from the court. presence outside of concern- Appellant contends that the seizure ing the deceased’s intention to meet with gun without a justi warrant is not appellant, that the deceased was not wor- fied, and its improper, admission is ex ried meeting appellant, about with that the harmful, tremely prejudicial and to him be speak deceased wished to to the cause the State offered evidence that the alone, and that he did not want bullet found in body of the deceased come to his ranch. had been fired gun question. from the in We find the court did err in not The State asserts that the seizure of the admitting these statements. We hold that gun question in justified and its admis testimony concerning of Luce Kelly and proper sion pistol because the would have part these statements is admissible as of been discovered in inventory appel of gestae explanatory the res and is lant’s auto that occurred some two hours meeting planned which the deceased gun. after the agree seizure of the We have resulting and did have with arresting the State. The officer testi in his death. Trostle v. impounded auto, fied that he he did not (Tex.Crim.App.1979). We appellant’s drive auto to the station be seventh, eighth, overrule and manpower, cause of a lack of that because grounds ninth of error. gun plain “in view” he removed it auto, from the locked Appellant’s entrust next three of error possession ed the keys of the auto and are based on the trial court’s comments driver transportation during the wrecker testimony to the of two of the State’s place impoundment. during ap- record reflects witnesses and pellant. alternatives were available other than cross-examination, the trial establishes that the deceased Richard-
During Ron There- gun been shot with the in he test son, expert, a firearms testified fore, any gun question whether in or determined gun question fired the gun partic- shoot a other could or could not the de- the bullet removed type cartridges ular of shell load is irrelevant. brass body ceased’s and the fired from were found in auto Rodri- During the of Albert examination attorney gun question. Appellant’s guez the trial court refused to admit mini- him the maximum asked what are recording conversa- portion tape of a of a There- calibre bullet. mum loads of a .45 Rodriguez tion which occurred between court, as sponte, commented upon the sua Rodriguez’s during and Walter L. Collett follows: investigation of the case. Collett pre-trial this, relevancy any I to see the fail for the State that he overheard testified projectile be behind a what load has to son-of-a-bitch,” state, “I killed the out of the have it come order to either someone during phone conversation with gun or not cause end of the muzzle shortly phone be- on the other end of the explode, Mr. Leon. appellant’s arrest. On cross-examina- fore court comment- objected “to the he did recall the tion testified that Collett then made The court ing on the evidence.” denied Rodriguez but conversation with following comment: any I conver- “telling him that did not hear this, definitely I relevancy phone, because see the sations on the just I fail to Leon, you off in further cross-ex- going I’m to cut admitted Mr. did.” Collett get gave when you want to the answers he you explain unless amination —if that, things Rodriguez or like were not intended powder questioned by marks into why need to fine, to see we When asked wheth- just but I fail answers. to be correct Rodriguez, and maximum go what the minimum Collett into intended to lie er he answered, “Well, intentionally has to do never of a .45 calibre bullet I load —I know, case. that I because this to reveal all intended get involved.” want to I didn’t again objected and attorney Appellant’s ordered objection the court answer to his Rodriguez testified that *6 “get with the case.” him to on with investigation conversation pretrial his heard Collett, him he had not told Collett the cross-exami Appellant contends in day on the any statement appellant make if the because extremely relevant nation is conversation, taped the question, that he firing not was used for test ammunition him and tape with he had the the and that used in the ammunition identical with conversation portion of the play could that to the shooting, conclusion as actual object point the State jury. At this to the shots were the fatal from which distance tape. We are of the ed to the admission been could have by the next witness fired err did not the trial court opinion that it comments the court’s different. From tape. The trial refusing to admit in reconsid court would have appears that the court’s by the preceded refusal court’s ruling if relevancy ered its that, since Collett effect to the comment purpose for the inquiry an made such in statement making pretrial admitted based attacking distance conclusion testimony at trial but consistent marks, not occur with such did but powder testimony, the Rodriguez’s consistent only facts Richardson. the witness cannot con purpose. We tape served by the cross- determine sought to weight of on the be a comment this to time clude at that of Richardson examination is a mere opinion it In our re the evidence. loads and maximum the minimum were testi of the interpretation explanation .45 calibre from a propel a bullet quired to ruling court based upon which the mony weapon to ex not cause weapon and though the trial immateriality. Even agree with the State We plode. within the proceeded have should stage of court at the court evidence before statutory guidelines of portion TEX.CODE CRIM. (Vernon 1979)
PROC.ANN. art. 38.05 when Accordingly, nothing we hold that ruling on admissibility tape presented re- appel- for review and overrule cording, showing tenth, eleventh, we find no of harm to lant’s and twelfth appellant or benefit to the repe- State. The of error. tition of prior testimony in the course of its We next consider rulings by a trial court is harmless error. grounds of error concerning the interpreter (Tex. Young v. the trial appointed. court Appellant con
App.—Houston 1982, pet. [14th Dist.] tends the trial court erred instructing ref’d). jury that Quintero, Roberto who testified through
Appellant, interpreter, an question gave answer to the specific an swer when whether he had a there was conversation with a controversy Paul between concerning interpreter Poemer official the fact that he was inter preter as going to what the deceased, to kill answer actually answered as was. The record is follows: void of exactly “specific what answer” the court instructed the That was never said. There was no such accept, but does request reflect the court’s ever, time, conversation like that at no reporter the court to “find people the witness’s that were there at the time However, last portion answer.” has testified today. here requested record the court report the court being After by admonished the court to er to read is set not out in the record. We question, answer the appellant denied that portion cannot ascertain what of the record place, such a conversation took after which the court referred to as “the witness’s an following occurred: Nothing presented swer.” for review. THE disregard COURT: And the last statement of anyone the witness as to Appellant further contends the tri that was there testify would not al court erred in denying request evidence, that. That’s not members of he be allowed to examine the official inter jury. preter qualifications as to her as an inter [******] preter. The record does not reflect a deni appellant’s request al of but reflects that Honor, MR. LEON: Your we would ob- permitted appellant’s the court chosen in ject to the commenting terpreter present during to be the trial and evidence and the statements of the wit- interpretations to monitor the of the offi ness the absence objection. of an interpreter, objection. cial without again The court instructed the scope Our of review is limited to an disregard the testimony ap- and overruled abuse of discretion the trial court. Un- pellant’s objection. Appellant’s attorney *7 record, appellant der the state of the has argues that when made the state- shown no abuse of discretion. Absent such concerning ment testimony of other showing a we will not disturb the witnesses, he referring spec- was to several State, of the court. See Minor v. 659 ified witnesses who had testified earlier. (Tex.App.—Fort 163 Worth join conjecture We refuse to in this as to pet.). no whom referred in his statement. Accordingly, appellant’s we overrule opinion, our the State is correct In grounds of error thirteen and fourteen. argument in appellant's ground of appeal comport complains error on does not Appellant of the court’s action error Appellant sustaining objection por- raised at trial. based his in the State’s to a objection sponte at trial on the court’s sua tion of recross-examination of Harris, weight arresting portion comment on the of the evidence but officer. The objection appeal pertinent ground his is based on the of the record to this disregard court’s instruction error reads as follows: testifying testimony in the personal expert, knowl- as an Q: you then have So really opinions how form of is limited to edge your own as or inferences (a) got you, opinions choked do sir? are Mr. Liveoak those or inferences which rationally perception based on the of the No, A: sir. (b) helpful a clear under- witness many of how Q: You’re not even aware standing testimony of his or the determina- him, sir? you, he choked are times of a fact issue.” C. McCORMICK tion No, sir. A: RAY, R. TEXAS LAW OP EVIDENCE & Q: even aware of the you’re Or not (Texas AND CRIMINAL CIVIL § choking? duration Supp.1984). Accordingly, 2d ed. Practice objec- sustained the State’s The trial court ground of error we overrule facts not questions assumed tion that the number sixteen. instructed the to “dis- in evidence and error, appellant grounds of con- In two as regard statements of counsel overruling the trial court erred tends erred Appellant argues the court voiced.” acquittal instructed verdict of motion for that the evidence established because the evi- at the close of the State’s tendered choking when deceased was and retendered at the conclusion dence him, and the court’s com- appellant shot that, points out all evidence. impermissible com- is therefore an ment Appeals re- El Court of after the Paso in viola- weight of the evidence ment on and remanded the first conviction versed TEX.CODE CRIM.PROC.ANN. tion of trial, for a new cause to the trial court 1979). (Vernon art. 38.05 only for vol- and retried he was reindicted agree that there We alleges it untary manslaughter. Appellant appellant stated prior testimony that the part as is therefore incumbent he shot the deceased because to others that that, in proof, burden of to establish of its choking him. Even was the deceased de- causing the death of the addition to sustaining though erred in the court ceased, acting under appellant did so while ground, particular objection on this State’s pas- a sudden influence of the immediate Subse error to be harmless. we find the Ap- arising adequate from an cause. sion thereto, he appellant testified that quent is insuffi- that the evidence pellant asserts the deceased because shot the deceased finding beyond support cient to such The issue of whether choking him. was reasonable doubt. choking appellant when the deceased legal as Appellant relied on self-defense before him was therefore appellant shot shooting the deceased. justification for jury. We cannot conclude (Ver- ANN. 9.32 TEX.PENAL CODE § appel “served to weaken court’s comments presented testi- Supp.1986). Appellant non We eyes jury.” defense lant’s against deceased made mony of threats the er ground of appellant’s fifteenth overrule reputation be- and the deceased’s him ror. inci- prior well as ing person as a violent ground of error com- Appellant’s next exhibited hostility the deceased dents permitting of the court’s action plains version of Appellant’s appellant. toward opinion testify as to his lay witness that, appellant was at while the facts is choke another. person one would how residence, subject- the deceased deceased’s castigation and to verbal ed objected to find the We eventually calmed The deceased another threats. choke person how one would *8 about appel- appellant rode down, he and issue of whether helps determine La- ranch. neck, the deceased’s car about lant’s on markings and bruises standing ap- next ter, the deceased photographs of in the contained warning, and, without pellant’s he and which shortly after his arrest taken head, lifted him by the evidence, ap grabbed establish into introduced against his him ground, and threw is not off “If the witness pellant was choked.
699
(Vernon 1981)
got in his car
could not ANN.
but
art. 36.13
& art. 38.04
car.
(Vernon 1979).
got
The deceased also
in the car
it.
start
began
passenger
choking
side and
time,
At the
jurors
same
could
threatening
Ap-
to kill him.
appellant and
have concluded from the facts that
gun to
pellant stated he fired the
save
threats,
prior
castigation,
verbal
and the
own life.
deceased,
by
assault on the defendant
produced
The State
evidence of ante-
by
escape
trying
followed
defendant
against
the deceased made
cedent threats
being
engine,
to start
but
unable
appellant.
appellant en-
by
Collett testified
choking
by
further
followed
the deceased
shooting,
tered his restaurant after the
defendant,
were sufficient to cause an
appellant say
telephone,
he
“I
heard
ger, rage,
or resentment
suffi
Quintero testi-
killed the son-of-a-bitch.”
incapable
cient to render his mind
of cool
argued
and the deceased
out-
fied
State,
Phillips v.
700
reflection.
side
auto for a short while be-
18,
1985,
(Tex.App.
no
S.W.2d
20
— Amarillo
shooting
fore the
occurred. He also testi-
pet.).
shot,
fied that after the first
the deceased
of a murder under the
The
verdict
grabbed appellant’s
then
arm.
arising
passion
influence of sudden
Voluntary manslaughter
is “an indictable
adequate
supported by
an
cause
every
offense of which
element must be
A
trier of fact
have
record.
rational
could
proved beyond
justi
a reasonable
doubt
crime of
found the essential elements
a
fy conviction. One of those elements is
manslaughter
voluntary
beyond a reason-
the accused ‘caused the death under
Virginia,
able doubt. Jackson v.
443
U.S.
passion
influence of sudden
immediate
2781, 2788-89,
307, 318-19, 99 S.Ct.
61
”
cause.’ Harda
arising
adequate
from an
560,
(1979).
L.Ed.2d
573
State,
359,
(Tex.
way v.
699 S.W.2d
361
appellant’s grounds of error
We overrule
1985,
see Mul
App.
pet.);
Antonio
— San
eighteen.
seventeen and
Wilbur,
684,
laney v.
421
U.S.
95 S.Ct.
error,
ground
In his final
1881,
(1975);
701 19.04(b) (Ver- TEX.PENAL CODE ANN. 1974). “Adequate
non cause” means cause produce degree of commonly
that would resentment, per- in a
anger, rage, or terror ordinary temper,
son of sufficient to render incapable TEX.
the mind of cool reflection. (Vernon 19.04(c)
PENAL ANN. CODE
1974).
In the instant case removed glove prior
gun compartment from the
being grabbed and choked the deceased. appel
While the attack of the deceased on issue that
lant inside auto raised the self-defense,
appellant shot the deceased in showing is no shot the
there under
deceased circumstances which would voluntary man
constitute the offense Luck v.
slaughter. 588 denied, 371, cert. (Tex.Crim.App.1979), 375 944, 100 2171,
446 64 799 U.S. S.Ct. L.Ed.2d
(1980). such evidence I conclude that the
Absent
state failed to meet its burden. I would appellant’s ground
sustain of error number
eighteen.
Accordingly I would reverse the convic-
tion and remand this case to the trial court
with instructions to enter a Massey, 19, Greene v.
acquittal. U.S. 2151,
24, 2154, 15, S.Ct. 57 L.Ed.2d
(1978). RENEWAL
URBAN AGENCY OF ANTONIO, Appellant, CITY OF SAN
v. SIGNS, INC.,
BRIDGES Donald W. al,
Engelhardt, Appellees. et
No. 04-85-00473-CV. Texas, Appeals
Court of
San Antonio.
Aug. 1986.
Rehearing Sept. Denied 1986. court shall take notes shorthand brings Appellant appeal this and raises proceedings, including of all voir dire trial grounds nineteen of error. We overrule examination, objections to the court’s judgment contentions affirm the charge, argument.” (Emphasis final conviction. ours.) We cannot conclude therefrom that appel- In first two of error required reporter trial court have a lant of the trial actions in complains court’s record the determinations excuses sponte excusing prospective jurors two sua deter entire venire. We fail to see how the ground venire, neither read or could mination of excuses as in for week, English language. Appellant jury panel write the ar- this case the for the can gues portion proceed prospective juror that neither abso- be considered a trial event, lutely disqualified ings. any In record before us under TEX.CODE excusing ques- prospective jurors in 2. 1. This is the second trial of this cause. The Before Appeals Eighth Supreme permitted Court for Judi- tion counsel for the court cial District reversed first examine them. The trial remanded cause for a new trial. granted change of venue to Val Verde County. possible knowledge of re- tor. He claims the transcription of the court contains the jurors prospective special prosecutor the two porter’s acquaintance notes of or with the Appellant not shown a has ground peremp- is relevant as a for a both permit the by the trial court to refusal tory challenge challenge for cause. and a for excuses of recording of the examination mandating Appellant authority cites no panel prospective jurors any other presence attorneys dur- participating of all specific There is also no for the week. ing voir dire. We hold that it is discretion- concerning objection of record ary with trial court as to what attor- any excuses of other the examination neys may appear for either side after the any Appellant waived juror. prospective jury has been sworn. find Accordingly, we error. merit. without ground of error to be third us, State, the case before In erroneous- complains the court general jury panel statement quash grant his motion ly refused to dire, announced prior to individual voir