McKay v. State

The judgment Ap- of the Waco Court

peals is affirmed.

TEAGUE, J., dissents. McKAY, Wayne Appellant,

David Texas, Appellee.

The STATE of

No. 69049. Texas,

Court Appeals Criminal

En Banc.

Oct. 1985.

Rehearing Denied Feb. 1986. jury may appel- evidence as reasonably to venue is sufficient if the for the conclude reasonably conclude from it that the offense County. lant committed in Brazos the offense Id., county alleged. was committed in the King v. 231. 312 S.W.2d Tex.Cr.R. (Onion, P.J., dissenting). We find that the (1958). proof enough made the State was sufficient Fitzgerald, Kerry Dallas, appel- park- P. stopped for When deceased was lot, lant. ing car, appellant walked to the circled it, knocked on the driver’s and told window Wade, Henry Atty. Dist. Ruth E. that he needed After deceased a ride. Kinne, Plagenhoef, Norman Paul Macaluso give ride, refusing appellant a Hill es- Scott, Dallas, Attys., and Rider Asst. Dist. to her then Huttash, Austin, girlfriend corted his car. She Atty., Robert State’s approach the State. saw Hill. Hill looked down in direction of hands in, car, up got and then to his backed passenger’s Appel- slid over to seat. OPINION got lant into driver’s seat and the two MILLER, Judge. away. of them drove appeal This is an taken from a conviction 5, 1982, March 7:00 Friday, On at about Code, capital murder. Y.T.C.A. Penal a.m., carpenter discovered in a body Hill’s 19.03(a)(2). penalty The death was im- § Colinas, Irving field Las a subdivision in posed after answered affirmative- just of Dallas. outside Hill’s hands ly issues special submitted under Art. telephone been tied with cord. He had 37.071, Appellant brings V.A.C.C.P. twen- been shot four times in the head. ty grounds of error before this Court. We Also at approximately affirm the conviction. on March 3:30 p.m., Long police arrested of the Although appellant challenge does not Park, Dallas, University a for suburb of sufficiency support the of the evidence to Long the of cocaine. delivery was incar- conviction, the a brief of recitation University cerated in De- Park Police be of facts will assistance in our resolution partment Jail. grounds of his of error. appellant Long, met 5, Kevin subse- 8:00 a.m. appellant At about March key quently a State’s against ap- witness University De- arrived at the Park Police

pellant. They together worked and lived partment to offi- Long. Jail visit Kevin An years, for several and in moved to jail appellant cer at the asked for identifica- appel- Dallas where the events to leading Appel- tion him permitting before inside. lant’s trial and conviction occurred. license, get lant left his driver’s he to which 1982, February, appel- car. Long a .32 said was in his The officer obtained saw and a .380 pistol, revolver automatic which parking standing lant in lot to a next gave appellant he to with under- Chrysler. Appellant tan over he blue said standing they that robbery.” would “do a license, his permit- could not find but was During 1982, last February, week of Long. ted visit inside to appellant suggested Long they to that rob Long Appellant told that he had obtained pharmacies together. some Appellant sug- Club, car, a man from abducted the Rox-Z gested truck, they that Long’s use since it telephone cord, him tied him with and shot plate. had no license Long When did not Appel- six times in the back of the head. agree truck, the use of appellant to told lant he had stated that waited until go him he would parking that to a lot and squirting stopped blood out of the back car, hijack driver, find a nice “not leaving. head before deceased’s any leave witnesses.” appellant jail, Long When left the asked Thursday, On March the de- talk to Officer Holman. As a result Hill, ceased, Bobby left his home take a conversation, po- Holman called several keys girlfriend, set of car to his who had Irving in departments lice the area. The keys lost her at the Rox-Z Club. Hill drove in- Chrys- Department investigators his father’s 1980 tan Police sent navy over blue ler to the Cordoba club. about Long terview statements.

An arrest warrant “A. God, was then issued for to me— appellant’s arrest. “Q. justified taking —is in somebody’s— giver “A. —is the one that is the life—

On March p.m., at 11:15 William Mot- teram, Hut, a manager “Q. right. of a Pizza All gunpoint robbed at by appellant who drove “A. —and He is the one that takes life. in off a late light top” model “dark with “Q. Right. Chrysler gun Cordoba. The recovered way Is the I and feel. believe appellant from after his was identi- arrest “Q. fine, just That’s Mrs. Jones. Like I fied Motteram as one that looked similar said, people expressed other have gun to the robbery. used very point you same that have. view 6, 1982, a.m., On March at about 2:30 I gather feeling And that this is a pulled was arrested as he out well, you obviously this is have— parking driving the Rox-Z lot a tan over very strong religious feeling you Chrysler. blue A search of the car re- have. who left the club with girlfriend made the identification. longing fied at a vealed two On March Irving photographic lineup Police appellant. weapons 7, 1982, appellant Department and three letters be- Bobby as the conducted at Hill. Hill’s was identi- person “A. Uh-huh. there are no facts or circumstances sit on a that could ever allow are All ^[******] saying, right. that there is no I and make gather, from what way actually decision result in a verdict nineteen, In ground of error number anybody. would cause the death of Is appellant contends that the trial court com that correct? excusing mitted reversible error “A. Yes. Jones, venireperson Dorothy cause in viola Illinois, Witherspoon right. tion Did confuse there? U.S. (1968), 88 S.Ct. 20 L.Ed.2d 776 “A. No. consequently denying appellant “Q. words, just way In other there’s no right impartial jury. to an you jury could ever serve on this any jury way in such a other and vote The record of the voir dire examination getting somebody that would result in prospective juror Jones reflects: penalty? the death “Q. you personally ... How do feel about “A. That’s correct. penalty? the death “A. I understand that only God is the ^[******] giver I and taker of life. do not be- reason, “Q. you And for could never that beings lieve that human should take serve on a and make a decision life, I honestly, you could not somebody in actually that would result myself— know live with dying? “Q. Okay. “A. —if I “Q. taking a life. one that And that’s the truth. situation. Those are ... ^[*] life does not you just simply I gather ^[*] were from what ^[*] part justify ^[*] feel that my you’re saying someone else that convictions. ^[*] type taking ^[*] “A. “A. “Q. “Q. jury like that and that; you way what Just no Right. Right. ... ^[******] that Now, you way? could never said that there’s you Mrs. could ever have Jones, actually have served on a I gather written simply from done no in I “A. do not. death, participated writing in or even “Q. only person Is that correct? And God is the who— that word death. Knowing “A. Yes. “A. that results be would ^[******] death. “Q. right. asking All That’s what I’m “Q. gather I you’ve And from what said words, you. your feelings In other if your strong religious feelings that are you expressed that have are so us you never, such knowing that could know, course, strong, you then yourself, you could write in never you law allows us to tell beforehand death, you like right? said—isn’t that is, result what the what the effect is of “A. Yes. yes three answers.

“Q. gather I you’re saying from what just you And like told us there’s that you yes that could never return three ever, you prior no way could —before questions, knowing answers to those 1974 ever return a verdict of death yes that three answers would mean the in, d-e-a-t-h, writing thing it the same anybody. reading you death of Am I goes yes for three answers. correctly, Mrs. Jones? “A. No. “Q. “Q. “A. tions are doesn’t Mrs. Yes, Have ... ^[******] Now, Jones, you are. I matter said anything submitted from I would whether what you you’ve incorrectly? gather these told that ques- other me, it “A. body’s death. us knowing that equals swer those You That’s ^[******] that know death, correct, there’s questions yes, yes, yes, and I believe it would result Is that correct? results — no yes. way you yes, you’ve could an- yes, any- told yes questions, you not, that simply “Q. could right. you All You understand if that your religious feelings, because of an- questions yes, answer the all that it so any questions way swer in any yes results in three answers— yes would result in three answers be- “A. That be death. yes cause know three an- “Q. —that’s death. means person swers that the on trial “A. Yes. And told that I couldn’t dies. do that. “A. That’s correct. right. You do There’s can’t that. reason, gather, IAnd for that way you no could do ever that. speaking just I’m if—and exam- an I told that. ple suggesting here. I’m not “Q. All right. Regardless of the evi- you’d put on jury, say this let’s but dence. if you put you on that —if were (Juror head) “A. nods position, to in you forced that actually on a jury, you would be— ^[******] your religious feelings strong are so go I you have to first and I had to ask would require you you that it to—that questions. gather all I these But from either to would have answer one of you’ve what said that it mat- wouldn’t questions you those see?—or not no— questions ter if you I asked the Mr. all, ensure, questions the at answer to you questions Scott asked the or Mr. guarantee, words, to in other that the you Harrison or Mr. Nelson asked the person on trial not would die. questions you anyone else asked —or Now, put I don’t in want words questions, the for that matter. Your mouth, your way you but is that the position is simply that could not feel? your strong religious feelings— violate yes don’t think I could answer three could not simply that correct?— questions. put aside an to tell those and take oath

“Q. Okay. Well it’s— in judge participate the would

any case testimony that would in any- ting result into evidence the of witness body’s death. Isn’t that correct? concerning robbery a William Motteram at 5, 1982, “A. That’s a Pizza Hut committed on March correct.” since it constituted evidence of an inadmis- Texas, 38, 100 Adams v. 448 U.S. S.Ct. sible extraneous offense. 2521, (1980), 65 L.Ed.2d 581 the United Supreme applied States Court that, guilt- Wither- during The record reflects spoon, supra, penalty to the Texas death trial, phase innocence of the the State statute and stated: called Motteram. Motteram testi- William

“If juror obey is to his oath manager and fied that he was the assistant of a Texas, follow the law of Garland, he must be in Pizza Hut restaurant Texas. willing only accept in certain 5, p.m., He stated that at 11:15 on March acceptable pen- circumstances death is an 1982, restaurant, appellant entered the alty but also to statutory answer the pointed gun head, at Motteram’s robbed questions without conscious distortion or cash, him in in and then fled $80.00 bias. The State does not violate light top Chrysler. late model dark with Witherspoon doctrine when it excludes gun'used in Motteram testified that the jurors unwilling who are unable or robbery gun looked like the recovered from penalty questions address the with this appellant, in and used the instant offense. degree impartiality.” following The record reflects also 46, 448 U.S. at 100 S.Ct. at 2527. sequence of events: ob- Moreover, Adams, supra, Supreme in getting Chrysler, served into the which be- Court set forth the standard for determin father, longed during to the decedent’s ing prospective juror may when a be ex 4; evening late hours of March the dece- his or cluded for cause because of her body dent’s was found at 7:00 a.m. on the capital punishment: juror may views on “a 5, in following morning, March in a field challenged not be for cause based on his Irving; robbery at the Pizza Hut oc- capital punishment views about unless his 5; p.m. at on March and on curred 11:15 prevent substantially im views would 6, appellant March was arrested at 2:15 pair performance his duties as a Club, driving in a.m. the area of the Rox-Z juror in with his accordance instructions Chrysler possession gun in and of the Id., at and his oath.” U.S. identified Motteram as similar to the 2526, quoted in Wainwright S.Ct. at v. gun robbery. used — Witt, U.S. -, 105 S.Ct. Appellant contends (1985), (emphasis origi L.Ed.2d since robbery the Pizza Hut is inadmissible nal). go prove any it did not material issue in upon testimony, prospective Based her that the the case. State asserts evi- juror indicated that she could not set Jones regarding dence to the issues was relevant feelings give her answers that aside Long’s testimony corroboration of Kevin as result in assessment of the death appellant’s plan to steal a car and com- was, therefore, penalty. not excused She robberies, appellant’s motive. mit Witherspoon doctrine. in violation Brandley also v. S.W.2d 699 See Williams (Tex.Cr.App.1985); Bird v. set forth the test we (Tex.Cr.App.1985); 65 v. S.W.2d Williams of extraneous offense evidence admissibili State, (Tex.Cr.App.1984); 682 S.W.2d 538 first, if the ty: such evidence is admissible State, (Tex.Cr. 676 S.W.2d 379 v. Smith material issue transaction is relevant to a State, 643 App.1984); Hernandez v. second, case, relevancy if and the (Tex.Cr.App.1982). Appellant’s 397 S.W.2d outweighs its inflam value of the evidence error is overruled. of nineteenth matory prejudicial potential. Id. at State, quoting from v. 647 S.W.2d appellant Elkins ground In his second also (Tex.Cr.App.1983) at 665. See in admit- court erred the trial contends that State, Ap- Morgan (Tex.Cr. bery the Pizza was admissible. v. at Hut S.W.2d App.1985); over- supra; pellant’s v. second of error is Brandley, and Rubio State, (Tex.Cr.App.1980). 607 S.W.2d 498 ruled. case, In a circumstantial evi- evidence the error, appellant In a related admissibility depends dence’s on the trans- admit- the court erred in contends that trial action’s relevance to a material issue which that, was ting testimony appellant when Williams, prove. supra

the State must at arrested, on plate the found the license State, 346. also Mulchahey See v. registered Chrysler actually was to another S.W.2d 112 (Tex.Cr.App.1978). person. The vehicle owned another arrest, the record shows that at time of his Evidence relevant to an accused’s appellant driving Chrysler was a found committing in motive an offense is admissi fa- belonging to the deceased’s Cordoba proving ble it the may because aid in that ther, Hill. the ran a Robert When officers alleged accused committed the offense. plate check, they found the license that supra Brandley, at See also v. 706. Porter Chrysler plates reg- found on the not State, were 623 S.W.2d 374 car; they reg- to istered that rather were and cited at The cases therein 385-86. to a must, however, istered car owned an individual tend an evidence to raise Allen, Appellant living in Texas. contends in of a inference favor of the existence that this evidence of an extraneous offense part the com motive on of the accused to not should have been admitted. alleged mit the offense. Id. bar, the Long case at Kevin Initially, testi the record shows that testified intended to steal plates mony establishing that the license pharmacists. car and commit robberies of Chrysler reg attached to the were not Ergo, appellant’s to commit the motive to was earlier istered that vehicle admitted was, according crime he was indicted for objection. Nothing, in the trial without case, theory the State’s of the desire therefore, preserved was review. steal a car and commit robberies. State, (Tex.Cr. v. 640 S.W.2d 275 Brown proffered robbery regarding evidence the citing App.1982), at 280 Garcia v. certainly Pizza Hut raised an infer (Tex.Cr.App.1978); and verifying motive, ence and therefore (Tex.Cr. 627 S.W.2d 710 Haynes exception general falls within the to the App.1982). See also Crocker v. precluding rule of admission extraneous (Tex.Cr.App.1978). fenses. pre- properly if the were Even error Given that the evidence rele served, however, trial court did not err reason, this vant for we now turn to admitting record in the evidence. The probative balance between its value and its sought ques- that when the State shows prejudicial Although effect. the evidence Depart- Highway tion the witness from in robbery place appellant did not Office, County Tax ment for Dallas light, positive judge the trial made efforts any testimony that appellant objected to that it did to insure not serve to divert offense theft would show an extraneous jury: attention of confuse the the record The trial ascer- of an automobile. court charge reflects that court’s question the tained State limiting an jury’s contained instruction showing only regarding evidence witness other than consideration offense plates registered, whom the Moreover, alleged the indictment. stolen. With this re- that the vehicle was

n wehave thoroughly reviewed evidence striction, permitted to tes- the witness with context this extraneous offense tify. probative outweighed its value we find that this an extraneous of prejudicial

its effect. On the facts of Evidence of case, necessarily probative relating to rob- fense must involve evidence

prior by criminal conduct the accused.1 The record shows that Officer Holman See (Tex. Albrecht v. 486 S.W.2d 97 Long approximately visited Kevin at 8:00 Cr.App.1972). If the evidence fails to show 5, 1982, a.m. on March University at the that an offense was committed or that the Department Park Police in order to conduct accused offense, was connected to the then an day, approxi- interview. Later that evidence of an extraneous offense is not mately p.m., Long 12:30 executed a written established. See Id. See also Baxter v. statement. The statement reflected that State, 645 812 (Tex.Cr.App.1983); Holman had Long interviewed at 10:30 and (Tex. Roach v. 586 S.W.2d 866 a.m., but that the given statement had been Cr.App.1979). But c.f. Brandley, supra at discrepencies at 8:45 a.m. The between the and Sanders v. 604 S.W.2d 108 given times Long’s statement and (Tex.Cr.App.1980). Since the ad testimony appel- were established when mitted in the case at bar did not show that lant’s counsel Long. cross-examined stolen, the vehicle appel establish that re-direct, On attempted State to clari- vehicle, lant stole the implicate nor fy discrepencies the time and recalled Offi- any misconduct, vehicle in improper no ex cer Holman to the stand. He testified that traneous Appel offense was admitted. Long given him information at about lant’s third of error is overruled.2 a.m., 8:30 and that Holman had been sixteenth, In his eigh- seventeenth and present Long when executed the written grounds error, teenth appellant contends statement. The record reflects the follow- that the admitting trial court erred in into ing testimony: evidence three letters recovered from the Now, right. Sergeant, “A. All I want Chrysler subsequent when it was searched over, you to read and I’ll ask Appellant arrest. asserts substantially whether that is the same that the letters constitute inadmissible evi- thing that he told at between 8:30 dence of extraneous offenses. morning and 9:00 o’clock in the The letters found in the vehicle 5th, March the 1982? were addressed to and concerned that, “MR. Objection NELSON: Your a check returned for insufficient funds and hearsay, Honor. That calls for and it an overdrawn bank account. Since this improper bolstering. also would be evidence does not prior establish miscon duct, it does not constitute evidence of an Sustained, “THE Rephrase COURT: discussion, extraneous transaction. See su your question. pra. Appellant’s sixteenth, seventeenth Kinne) (By right, Mr. what did eighteenth grounds of error are overr morning he tell of March the uled.3 5th, 1982? In appellant’s seventh Objection “MR. NELSON: as hearsay. he contends that the trial court erred “THE COURT: Sustained as hearsay. permitting prosecutor to elicit from Of- Kinne) Well, (By Mr. is what’s in Long’s ficer Holman that Kevin written you? that statement what he told statement introduced the defense was Again calling “MR. NELSON: for hear- officer, Long the same as what told the say. since such hearsay evidence constituted improper bolstering of the witness. “THE COURT: Overruled. Emphasis proof 1. added unless otherwise indicated. of an inadmissible extraneous transaction through testimony regarding was admitted regarding plate registra- 2. This evidence license registration. vehicle tion was relevant to the issue of vehicle owner- ship, and was therefore relevant to the State’s certainly 3.This evidence was relevant to show proof by appellant overall that the vehicle stolen vehicle, appellant’s connection with the but did belonged appel- to Robert Hill. The evidence itself, not of establish criminal conduct. itself, however, complains lant of did not Thus, establish that the vehicle was stolen. no

33 Well, “MR. again bolstering, ing” NELSON: occurs when item one of evidence is then, Your Honor. improperly by party used add credence weight unimpeached to some earlier “THE COURT: Overruled. piece of by par evidence offered the same (Witness exhibit) examines That’s ty. State, (Tex.Cr. 576 Pless S.W.2d 83 correct. App.1978), citing example at 84 as Lyons v. Kinne) “Q. (By right, Mr. All sir. Let State, (Tex.Cr.App.1965); 388 S.W.2d 950 you, me ask the first sentence there I State, (Tex.Cr. Acker v. says something believe to do with App.1967); State, and Frison v. 473 S.W.2d Now, about you 10:30 a.m. he told 479 (Tex.Cr.App.1971). appellant Since had information, this body of the state- impeached Long discrepen- with the time ment, it, I take I think have testi- cies, testimony Holman’s did not add fied between 8:30 and 9:00 o’clock. Is weight Long’s to but rather rehabilitated right? testimony. No error Appel shown. “A. That’s correct. lant’s seventh error is overruled. part So 10:30 there is in error? five, of error appel- number “A. That is correct.” lant contends that the trial court erred added.) (Emphasis admitting by appellant statement made We appellant’s will first address after he was arrested because the state- the complained contention that of testimo ment by exploitation was obtained ny hearsay. was inadmissible “Hearsay” an illegal arrest. is defined as an out of court statement The facts relevant to as this are offered for truth of the matter assert 5, 1983, follow. On March after Kevin State, (Tex. ed. Phenix v. 488 S.W.2d 759 Long police told what had Cr.App.1972), citing McCormick, J., at concerning murder, related to him Evidence, 460; State, at and Salas v. § police obtained a warrant for (Tex.Cr.App.1966). S.W.2d 440 a.m., 6, 1983, arrest. At 2:15 on March An out of court statement offered for the police appellant driving officers observed purpose showing what was said rather the area of the club where the deceased than truth of the matter stated therein had Believing appellant been abducted. not, however, does hearsay. constitute and dangerous, armed the officers exit- Porter v. 623 S.W.2d 374 guns ed their car with their drawn. At denied, 965, t. 456 U.S. cer time, appellant something stated (1982). S.Ct. 72 L.Ed.2d 491 See also effect he knew the officers (Tex.Cr. Nixon v. 587 S.W.2d 709 looking for him. App.1979); Gholson v. 395 (Tex.Cr.App.1976), denied, cert. developed, As these facts were U.S. 97 S.Ct. 53 L.Ed.2d 1084 following testimony: record reflects the (1977). [Questions by Prosecutor] case, What did do then when the instant the State’s at torney approached asked Holman the vehicle? whether the written Long statement was what had told him. defendant, McKay, “A. The had David question prov not directed toward up— his hands ing Long the truth of what had told Hol Honor, Your at this “[Defense Counsel]: man; rather, question was directed to object any time we would state- establishing ward whether the written defendant, by any made ments comported Long statement with what allusions to statements made not, therefore, said. The evidence was witness, defendant this as hearsay. this time the defendant was under ar- object We rest. it. Moreover, the did improper bolstering. constitute right, “Bolster- “THE All overruled. COURT: right, appellant, go illegal. According to ahead. rest was “[Prosecutor]: illegal the arrest war- the arrest is because “A. We approached went ahead and vehicle, no not admitted trial. There is and he rant was up— had his hands dispute that an arrest warrant was issued Now, “Q. this is you— three of Long police ap- after Kevin told the what Yes, “A. sir. pellant told him. “Q. —saying ‘Police,” what? Yes, “A. sir. brief, appellant that In his contends “Q. your guns Got out? challenged, the State when an arrest is “A. We’re all screaming ‘Police!’ We produce the arrest for the must warrant

all weapons out, had our yes, sir. State, inspection, citing Dowdy court’s “Q. right. and got (Tex.Cr.App.1976); And he’s his hands

up? State, (Tex.Cr. Cannady v. S.W.2d that since App.1979).4 Appellant contends Yes, “A. sir. present at the State did not warrant say right Did he anything then and trial, illegal. is the arrest there? Honor, Your we’re “[Defense Counsel]: required to Before the State is going object any statements however, warrant, produce the the arrest by point, made the defendant at this properly challenged. legality must The having placed his been under arrest by appellant’s arrest not raised was showing any warnings and no suppress motions to evidence. The first any type given have to him at this been suppression motion was directed at of an time. appellant interview conducted after was ar Question yes “THE calls for COURT: County rested and taken to the Dallas Jail. or no answer. Overruled. suppress A second motion to was filed ob say anything Did he or did he not con jecting to the search of two vehicles point in at that time? arrested; appellant after how ducted Yes, sir, he did. ever, concerning no mention was made We submit that this state- “[Prosecutor]: legality objections The made the arrest. gestae ment is res of the arrest. preceeding testi at trial as reflected object, To which we “[Defense Counsel]: legali mony do not raise the issue as to the officers, police These Your Honor. are ty of the arrest so that the State’s failure arresting somebody, a al- warrant has present the warrant constitutes reversi issued for his arrest. ready been We’d preservation, error is ble error. Absent no object statements that the offi- Crocker, presented supra. for review. See to at this time without may cer allude warning. proper Even if the error were properly “THE Overruled. COURT: preserved, the trial court did not err in say point in “Q. What did he at that admitting the statement since it was not time? product interrogation, custodial see recall, something to the ef- “A. Best State, (Tex.Cr.App. East v. 702 S.W.2d 606 looking we was for him.” fect he knew 1985) and Cannon v. 668 S.W.2d 401 brief, appellant argues that In his but was rather admissi gestae because the ar- ble as the res are inadmissible of the arrest. statements See support judge, citing by appellant do not his exhibited to the trial Vines v. 4. cases cited Dowdy, (Tex.Cr.App.1966). Cannady, defendant was arrest- S.W.2d 868 argument. In Vines, Cannady, supra we held that other citations omitted. In a warrant. ed without objects timely objection to admission of evi- the defendant made a search, to the defendant when a court, illegally ground that it was seized which was overruled and on the dence warrant, produce relies on a search the State failed to the warrant. We the State waiver, objection error will result held sus- reversible that the should have been absence of that the warrant was tained and reversed record reflects the case. unless the Mitchell v. (Tex. error, appellant In this asserts Cr.App.1983). Appellant’s these appro- fifth statements constitute an error priate objection warrant, overruled. to the arrest “careful trial court” sustained his sixth ground. objection on this The record contends that the trial court erred in over- objections shows there were three ruling mistrial, motion for as the at one hearsay, made time: chain of custo- permitted testimony to hear concern- dy, and insufficient of a ar- valid ing the seizure of eleven rounds of .380 rest warrant. The trial court sustained ammunition in appellant’s pocket found af- objection to of on the chain illegal ter his allegedly arrest. The record custody Thus, objection. the arrest war- following reflects the testimony: objection considered, rant was never dis- [Questions by Defense Counsel] cussed, upon. such, or objec- ruled As this “Q. right. All I take it that this search preserve tion did not of issue the validi- pursuant was made to the arrest war- ty of warrant. had; you rant is correct? We have searched the record and Yes, sir, “A. it is. only “attempt” by have found one appel “Q. you Do have that arrest warrant lant’s counsel to obtain the warrant. The you with now? record that during reflects the defense No, sir, “A. I don’t. Alford, cross-examination Officer who “Q. youDo anywhere have it here with- present Long gave was when his state building anything? ment, following place: discussion took no, I personally, “A. don’t sir. “Q. right. Sergeant, All you would “Q. you Do have a copy it back at have a copy the arrest warrant your anywhere? office or somewhere? I “A. don’t think I copy have a one, no, I “A. don’t have sir. arrest warrant itself. “Q. get copy Where could we a of it? Honor, Your we “[Defense Counsel]: I Judge “A. believe Chandler is the one object to State’s Exhibit Num- warrant, that issued the and he would particular ber 56. In to this card have the— which hearsay, contains that there has Sir, “Q. I’m sorry. who? been no of custody, identify- chain no Judge “A. Chandler. John Chandler. ing characteristics of re- the rounds “Q. And is he where located? portedly taken from the defendant. Irving Municipal “A. Court. Further, would object any we evi- “Q. right. you All Did get the search— defendant, dence taken from this since you get your- did the arrest warrant prove the State has failed to at this self? point pursuant that it was conducted No, sir, did “A. I not. valid a arrest warrant. “Q. Who did? “THE you identifying COURT: How are Sergeant I it “A. believe Jobe. that exhibit? “Q. Sergeant Jobe? only “THE thing WITNESS: The I did Yes, sir. I straight took it Investigator Cheek and it turned to him. All right. over And do know when got he that arrest warrant? “THE I COURT: didn’t ask what it, you did I o’clock, with how said are “A. Somewheres around 2:00 identifying that exhibit? I best recall.

“THE WITNESS: I right. don’t have

marks on positively there. I can’t Honor, Your we “[Defense Counsel]: identify as being those the same. if would ask the Court to see we can Objection “THE COURT: get copy sustained.” a of that arrest warrant. Now, Honor, Your he’s a mention was cured the court’s instruc- “[Prosecutor]: lawyer. get copy disregard. Appellant’s He tions knows how to sixth of the arrest of error is warrant. overruled. Well, Judge, I—we

“[Defense Counsel]: eight separate grounds ap- think we would be entitled to see the pellant objects to statements made certainly arrest warrant if he prosecutor during closing arguments thinks— to the Irving Department Police can tell jury. eighth ground, appellant they got got us where it and who it prosecutor claims that re- committed they got may and when it. when, during guilt/in- versible error lawyer, but— trial, stage prosecutor nocence stat- Public record. He— “[Prosecutor]: ed: is a moral vacuum. He has no “[T]hat conscience, heart, recognition fif- There are about no no “[Defense Counsel]: ty magistrates County, right wrong. perched in Dallas Your are on the You hell, looking deep rim of into it.” The trial Honor. appellant’s objection to the court overruled “THE I’ve heard him relate COURT: grounds they statements on the that were is, it so where ... outside the record. right. All “[Defense Counsel]: Counsel]); Your’re (By [Defense Proper jury argument fall must Judge has it? sure Chandler general one of four areas: summa within Yes, sir. evidence; of the deduction tion reasonable right, you. thank evidence; argument from the answer to counsel; opposing pleas Pass the and en witness.” law “[Defense Counsel]: State, 693 S.W.2d forcement. Franklin v. preserve objection testimony This fails to citing 420 at 429 Can to the arrest or arrest warrant since no non, State, supra; Denison v. 651 S.W.2d specific objection to the arrest or arrest State, 550 (Tex.Cr.App.1983); 754 Kerns v. made, appellant’s warrant was counsel (Tex.Cr.App.1977); and Thomas S.W.2d 91 ruling request failed on his to obtain State, (Tex.Cr.App.1975). 430 v. 519 S.W.2d warrant, last, “get copy” no and error, the In order to constitute reversible further effort was made to obtain the war- argument must extreme or mani jury Therefore, legality rant. the of the arrest festly improper, inject new and harmful properly pre- warrant was never raised 96, Kerns, supra at facts into evidence. served. Thomas, citing supra. if Even the error had been reading of the record as a Our preserved, since properly no harm is shown the state whole fails to reveal that above the court did not admit the evidence and manifestly by prosecutor the were ments jury disregard testimony instructed the interjected new facts into evi improper or concerning Generally, any the evidence. appellant. harmful dence which were resulting improper testimony error from is error Appellant’s eighth is over disregard an instruction to the cured ruled. ap except same in extreme cases where it clearly is calculated In his ninth pears that the evidence prosecutor re- contends that the committed jury inflame the minds of the and is of by injecting personal his suggest impossi the versible error such a character as to arguments of the pro opinion during the final bility withdrawing impression prose- State, guilt/innocence stage of trial. The Carey 537 duced on their minds. v. expert? stated: who is the (Tex.Cr.App.1976),at 759. See cutor S.W.2d 757 “[N]ow me, did not State, (Tex. look. You tell 692 497 You look. You also Brown v. S.W.2d [sic-not?], If so print? that testimony that boot make Cr.App.1985). We find that The trial to me.” why of such a not? Looks like it regarding .380 ammunition was objection defense counsel’s arising from its court sustained that error character

37 grounds on pothesis. no statement There is evidence to that ef- record, outside jury and instructed prosecutor fect.” The later stated: to disregard. any phantom. is no evidence of “[T]here this defendant abducted the de- When ... Initially, as was stated in Ra lot, parking in this from the ceased case he State, mos v. (Tex.Cr.App. 419 S.W.2d 359 testimony was alone ... There no to the 1967), prosecutor it is well settled that contrary. He’s himself.” Defense may argue opinions concerning issues objected counsel to both statements on the long so opinions case as the are they improper comments based on the evidence in record not and upon appellant’s testify. failure The constituting as Id. testimony. unsworn objections. trial court overruled both State, citing Van Skike v. 388 S.W.2d State, (Tex.Cr.App.1965); 716 Johns v. Impermissible upon comment (Tex.Cr.App.1952); S.W.2d 61 and Vine an to testify accused’s failure is made State, yard v. Tex.Cr.R. 257 S.W. language manifestly when the used is in (1922). complained argument in tended, or of such a character Ramos, supra, if do not “[N]ow naturally necessarily take it to intoxicated, go believe that man was testify. be a comment on the failure to say back guilty there and I would Paster v. (Tex. say stupid have to must be the Cr.App.1985), citing Johnson v. present case, In the est....” we view (Tex.Cr.App.1981); S.W.2d and Griffin argument prosecutor’s opinion as the (Tex.Cr.App.1977). constituting evidence and not as unsworn It language is not sufficient that the im testimony, especially prosecutor since plies testify: or alludes to the failure to the was arguing not possessed any that he language necessarily must the refer to fail special expertise jurors, and the who had State, v. Bird testify. ure to 527 S.W.2d the before pe exhibits them for their own (Tex.Cr.App.1975). 891 The statements rusal, were invited to make their com own necessarily made in the instant case did not parison. appellant’s testify. refer failure to to Moreover, if argument even the Moreover, case, in the instant appellant’s improper, was we find that the trial court’s argued counsel that someone other than disregard instructions to were to sufficient appellant had committed the murder. The cure any inuring appellant. harm to Ordi prosecutor’s by statements invited were narily, any injury improper argu jury from the argument appellant’s of counsel. See ment is obviated when the court instructs Franklin, supra, 429 citing Holloway v. at jury disregard, the unless the is remark State, 525 (Tex.Cr.App.1975) S.W.2d 165 so inflammatory prejudicial that its effect State, 169; De La v. Rosa 658 S.W.2d reasonably cannot by be removed such an v. (Tex.Cr.App.1983). See also Smith Brown, admonishment. 692 S.W.2d at State. (Tex.App.1982). 635 S.W.2d 591 State, v. citing Blansett of Grounds error numbers ten and eleven (Tex.Cr.App.1977). The the statements in are overruled. instant inflammatory case not so so as to Appel constitute reversible error. grounds In of error twelve and ground lant’s ninth of is error overruled. thirteen, appellant prose contends that the grounds

In of error numbers ten and cutor committed error when he reversible eleven, appellant prosecu- contends that the appellant twice referred to as a “wolf”. tor by Appellant’s committed reversible error comment- objections the references ing upon appellant’s testify. failure to were overruled. We have examined the During guilt/innocence trial, stage particularly record of this cold-bloodedand prosecutor stated: he me killing pros asked unwarranted and find that the “[A]nd get up proper and exclude that else ecutor’s references were deductions [someone hy- committed a the evidence. See Burns v. upon as reasonable based murder] fifteen, (Tex.Cr.App.1977), ground error S.W.2d number denied, appellant prosecutor asserts that the com cert. 434 U.S. 98 S.Ct. (1977). grounds during argu L.Ed.2d 294 Both of error mitted reversible error punishment stage by trial are overruled. ment at the misstating prosecutor stated: law. fourteenth of er- you, let me tell I can’t have this “[A]nd ror, he prosecutor asserts that the commit- Griffith, just examined Dr. for the man ted reversible error he referred to when purpose answering question. parole probabilities. During punish- that, do or I have. Mr. Nelson can’t would trial, phase arguing ment for the why didn’t I him examine him. said have prosecutor death stated: penalty “[D]o Ap Because the law doesn’t allow me to.” run want want to a business? Do objected pellant’s counsel on the go night? Do parking to a lot at argument that the was a misstatement of A drugstore? to run a Pizza Hut? want law, the trial court but overruled your him on With back streets? Or objection. probability....” there a Defense counsel argu- Appellant concedes that there no objected then on the that the appellant’s competency to obviously upon jury ment called to de- issue raised as to sanity at time of the long stand trial or his liberate on how the defendant would such, As there was no vehicle imposed. sentence The trial offense. serve could have had the court objection. court overruled the which the State appoint psychiatrist appellant. to examine a Certainly improper pros it is 46.02, V.A.C.C.P., 46.03, Art. and Art. Cf. urge consider the ecutor to Thus, permit not V.A.C.C.P. the law does length actually of time defendant psychiatrist appointed the State to have a required given any punishment to serve examining the defendant purpose for the jury might impose. v. Clark relating solely to his future for evidence (Tex.Cr.App.1982) and cases cit prosecutor dangerousness. The Hodge also ed therein at 724. See misstating the law. 631 S.W.2d 754 cases cited therein at 756. Moreover, if even examined, prevented he could have been only punish jury Since the had two using from the evidence obtained the State alternatives, death, prison in ment life or right by claiming his Fifth Amendment placing appel prosecutor’s reference to the against Estelle v. self-incrimination. on the streets” was a reference lant “back 1866, Smith, 451 U.S. S.Ct. Thus, improp argument the was parole. to (1981). Appellant’s fifteenth L.Ed.2d er. ground of error is overruled. every improper argument Not four, ground In of error number jury, during final remarks to the made prosecutor com appellant contends that however, requires reversal of the case. by improperly refer mitted reversible error reversible the ar order to constitute testify. The failure to ring appellant’s to light in gument must be examined during punishment record reflects mani and must be extreme or entire record trial, stage appellant’s when counsel of mandatory improper, violative of a festly mother, the follow questioning harmful to the inject or new facts statute place: ing discussion took proceedings. into the trial Frank accused [Questions by Defense Counsel] lin, therein. supra, 425 and cases cited Well, Irving in it was whether the record the instant We have examined Jail, County did in the Dallas here made find that the remarks case and him about what a chance to ask have although improper, did not con prosecutor, transpired? Appellant’s four reversible error. stitute Yes, I did. ground is overruled. teenth of error “Q. What regard? did he tell in that Fourteenth Amendments to the United permit States as it Constitution does me, Judge, Excuse I mil “[Prosecutor]: comparative propor- Court this, this to conduct object indirectly in that it’s tionality Appellant’s review. contention trying to they do what cannot do adversely Pulley to him in decided directly without the testi- defendant’s Harris, 465 U.S. S.Ct. added.) mony. (Emphasis (1984). Appellant’s L.Ed.2d 29 first Well, Honor, Your “[Defense Counsel]: of error is overruled. all, object first of we the comment on the failure of the defendant to testi- appel of twenty, error number fy- systematically lant asserts that the State Secondly, they brought in all sorts of excluded blacks and Mexican Americans

conversations the defendant’s jury [sic] from the pro violation the due had with other witnesses. We want to rights and equal protection cess under bring in a conversation de- United States and Texas Constitutions. fendant had with this witness. Appellant any fails to direct us to “THE objection COURT: Your concerning is hear- composition record

say? jury panel jurors from which the selected, Yes, nor has our examination sir. “[Prosecutor]: record disclosed such evidence. With “THE COURT: Sustained. evidence, such out no error is shown. See toAs conversations [Defense Counsel]: (Tex.Cr. Evans v. 622 S.W.2d 866 between the defendant and a witness? App.1981). Yes, “THE COURT: sir. Moreover, We’d also have evidence to an [Defense Counsel]: objection as to the comment on which does refer concerns the peremptory failure the defendant State’s exercise of its chal testify. lenges. peremptory The mere use of chal “THE COURT: Overruled.” lenges qualified minority persons strike before, As stated in order to constitute jury prohibited from the systematic is not impermissible an upon comment a defend- exclusion persons of those in the selection ant’s testify, language failure to used petit juries. See Id. also Chambers v. manifestly must be intended of such a character that naturally Appellant’s and cases cited therein at 328. necessarily take toit be such a comment. final error overruled. Paster, Bird, supra; 527 S.W.2d at 894 and judgment of the trial court is af- cases cited therein. See also Nickens v. firmed. (Tex.Cr.App.1980) 604 S.W.2d 101 (opinion on State’s Motion for Rehearing). J., TEAGUE, dissents. Taken in the context in which it was CLINTON, Judge, dissenting. made, the statement was not a comment on appellant’s testify. failure to The trial opinion great While there is a deal such, court did take it as but rather agree, I the Court with which cannot interpreted it hearsay objection. as a simply for would be content to dissent but record also reflects that the trial court’s majority’s second overruling charge to the contained an instruction ground theory of error on a that evidence they not to consider revealing robbery extraneous offense testify failure to for any purposes. No for the “relevant as rehabilitation evidence error Appellant’s ground is shown. fourth testimony Long.” of Kevin If there is au- of error is overruled. thority ought to be proposition, it cited. error,

In his appel first lant claims that capital punish State, the Texas When 662 344 v. S.W.2d Williams procedure ment the Eighth violates (Tex.Cr.App.1983),speaks of “relevance 40 motive, prove”

a material issue the State must in a sible to show as also contended case, id., 346, circumstantial evidence it appellant. appellant's Thus second and the cases cited make clear that “issue” properly original of error was overruled on motive, means matters as such intent and submission. design, State, 753, Etchieson v. ap- We have examined the remainder of (Tex.Cr.App.1978) 760 and Mulchahey v. pellant’s contentions in his motion for re- State, 112, 574 (Tex.Cr.App. S.W.2d hearing and find them to be without merit. 1978), identity, Jones v. Appellant’s rehearing motion for is over- (Tex.Cr.App.1978). S.W.2d ruled. clearly, Just as in Caldwell v. S.W.2d JJ„ TEAGUE, CLINTON and dissent. rejected Court the theory advanced majority opinion cause, in this viz:

“To hold that the cross-examination of [complainant]

this permit the in-

troduction of an extraneous offense holding

would be tantamount testimony

such would be admissible in any case where counsel ex- defendant’s ercised the right constitutional cross- WILLIAMS, Principal Frances & examination. This is not and should Langlois, Surety, Richard E. [Emphasis not be the law.” added] Appellants, Accordingly, I dissent. v. TEAGUE, J., joins. Texas, Appellee. The STATE of OPINION ON APPELLANT’S MOTION No. 652-84. FOR REHEARING Texas, Appeals Court of Criminal original On submission we over En Banc. Appellant’s

ruled second concerning the Jan. 1986. admission of an extraneous offense, for two reasons. On motion for

rehearing appellant contends that we erred doing complains, Judge so. He as did original

Clinton dissent on submis

sion, that cross-examination of a witness justification

cannot alone be for the admis

sion of an extraneous offense and thus our wrong

opinion is when it states

extraneous offense was “relevant as reha testimony evidence for the

bilitation Long”.

Kevin Caldwell (Tex.Cr.App.1972). agree, We portion original opinion

and that has agree

been We do not however excised. that the extraneous offense was not admis- opinions Morgan (Tex.Cr.App. 1. While some have drawn a distinction out, 1985), proved by pointed between cases direct evidence and “There is no con- Court evidence, proved ceptual necessity those circumstantial based between cir- differentiate simply language determining on what seems to be loose cumstantial and direct evidence in supra, Mulchahey, admissibility Etchieson and as well of the the duct,” id., of extraneous acts of miscon- Jones, 879-880, supra, just recently formulation in n. 2.

Case Details

Case Name: McKay v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 2, 1985

Citation: 707 S.W.2d 23

Docket Number: 69049

Court Abbreviation: Tex. Crim. App.