Passmore v. State

judgments would affirm the courts below.

POPE, J., joins dissenting opinion. in this PASSMORE, Appellant,

Franklin Texas, Appellee. The STATE of No. 51792. Texas, Appeals Court of Criminal Panel No. 2. May Rehearing July Denied Woodburn, Amarillo,

Douglas R. Robert Dallas, Udashen, appellant. Curtis, Former Atty.

Tom Dist. & Steve Schiwetz, Atty., Former Asst. Dist. Amaril- lo, Hill, Danny Atty. Wayne Dist. & Bagley, Amarillo, Huttash, Atty., Dist. Asst. Robert Austin, Atty., State’s for the State. ONION, J., Before P. and TOM G. DA- CLINTON, VIS and JJ.

OPINION DAVIS, Judge.

TOM G. from a Appeal is taken conviction for building.1 Punishment, burglary of a en- convictions, hanced by prior two was as- sessed at life. ground error,

In his first challenges sufficiency of the evidence to support his convictiоn. He maintains the evidence ‍​‌‌‌‌​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​‌​‌​‌‌‌​‌‌​‌‌​​‌​​‌‌‍is insufficient to corroborate the testimony accomplice anof witness. Wilkerson, Jeffery

Officer of the Amaril- Department, lo Police testified that on the 18,1974, night of September went to the receiving report Acme Brick Yard after a burglary progress. a ap- As Wilkerson proached yard, slowly he noticed a car yard. away drive from in front of the pursued stopped. car was Wilkerson car, released the driver of the Marvin Pass- more, checking after his driver’s license. Finding burglаry no evidence a at the yard, Wilkerson left to be resummoned twenty receiving some minutes later after report. burglary yard Wilkerson returned a second . yard time He related that was sur By shining his flash rounded a fence. light building yard, on the officer open saw a broken window and an door. spoke with Jesus Wilkerson then Cortez they the scene of the offense. While were talking, pointed toward two individ Cortez walking nearby. who were Wilkerson uals individuals who were near some ran to the submission, original appellant’s appeal by filing сonvic- virtue of his On out-of-time per opinion corpus. See Passmore v. tion was affirmed in a curiam federal writ of habeas Estelle, (5th 1979). Appellant granted June has been 607 F.2d 662 Cir. placed appellant railroad tracks and “A conviction cannot be upon Jimmy Chambers under Both of the of an arrest. unless corrob- other tending had cuts which orated evidence to con- men on their arms were nect defendant with the bleeding. offense com- mitted; the corroboration suf- is not related that was near his home mеrely ficient if it shows the commission offense, yard. night brick On the of the he of the offense.” coming yard noises heard from the and the sufficiency The test as to police. called the testified that after is to eliminate from corroboration consider yard Wilkerson had been at the the first accomplice ation the evidence the witness time, two individuals came the fence around and then examine the other evidence to behind yard. from the The men were out- incriminating ascertain if it is of character the fence. When side Wilkerson returned which tends to connect the defendant yard, to the the men “ran the build- around of the the commission offense. If there here and to ing took the tracks.” Cortez evidence, such the corroboration is suffi appellant the identified as one of men he State, cient; not. Sheets v. it is otherwise surrounding seen outside the the had fence State, 864; Rice v. Tex.Cr.App., 606 S.W.2d yard. Bentley v. Tex.Cr.App., 587 S.W.2d 689. In James Duckworth testified he was State, Tex.Cr.App., 520 this S.W.2d manager the of Acme He re- Brick Yard. Court noted: nоthing lated that had been taken from the showing “The oc mere that an offense building. Duckworth stated that window curred is not sufficient corroboration. been broken the had in order to enter build- State, v. Windham (Tex. 479 S.W.2d 319 ing. Reynolds State, 489 v. Cr.App.1972); Jimmy accomplice the wit- com (Tex.Cr.App.1972). 866 The S.W.2d related ness instant case. Chambers weight bined cumulative of the incrimi offense, on the he and day of the nating evidence furnished the non-ac appellant appellant’s went to the home of con complice witnesses which tends to brother, Marvin Passmore. three indi- nect the accused with the commission then Brick viduals went to the Acme Yard. the test. Perkins v. supplies the offense in While Passmore sat in his car front of State, (Tex.Cr.App.1970); 450 855 S.W.2d yard. ap- the Chambers stated that and State, v. supra; Colunga Windham v. pellant crawled under the fence surround- State, 866 (Tex.Cr.App.1972). 481 S.W.2d yard. the then ing A window was broken necessary It is not that the corroboration building. Chambers crawled into the link the accused to the crime or directly appellant He unlocked a door and entered guilt, be in itself to establish sufficient building. Chambers that while the stated State, v. (Tex. Attwood 509 342 S.W.2d looking money he and were in State, supra; Reynolds v. Cr.App.1974); building, police the the arrived. The men State, Rainey v. (Tex.Cr. S.W.2d left the building through then unlocked only it make App.1966); need the accom and went which was company door to a tire testimony likely more than not. plice’s minutes, nearby. waiting After ten Cham- State, (Tex.Cr. Warren v. 514 S.W.2d 458 yard bers and returned to App.1974).” premises cutting through entered after or Proof that an accused was at they Beforе to enter a fence. a chance of a crime at or near the scene near building again, arrived police may time commission tend to connect of its time. that he Chambers testified with the commission of a crime accused then fled and were arrested a sufficient corroboration so as to furnish time short later. State, Tex. v. conviction. Deas support 38.14, V.A.C.C.P., corrob provides Cr.App., as fol- 531 S.W.2d 810. Sufficient Art. accomplice of the lows: oration warrant a may conviction be “THE All right. COURT: furnished suspiciоus conduct of a defendant such “(Off discussion.) the record flight as after a crime was committed. your objec- “THE I’ll sustain COURT: Cawley State, Tex.Cr.App., tion as to whether or not Mr. Chambers Finally, presence of the accused ‍​‌‌‌‌​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​‌​‌​‌‌‌​‌‌​‌‌​​‌​​‌‌‍in jail, has been in and I will instruct company is a circum jury disregard question stance to be in considering considered response, any. but the if Proceed Mr. sufficiency of the evidence to corroborate Fairweather. an accomplice. See Moore v. Tex.Cr. App., Rodriguez S.W.2d 263. “Q. Tex.Cr.App., сustody, you, it You’ve been in haven’t past—

stated: for the “Proof that the accused was at or “MR. Objection, near DAMBOLD: Your Honor, scene of the crime at or about it’s immaterial where he’s been. commission, time coupled of its when “THE COURT: Sustained.” suspicious circumstances such as un Appellant perfect did not a bill of hour, appar reasonableness of the lack of exception proffer proof or to show what presence, ent reason being for such in the Chambers’ would have been. comрany accomplice of subsequent circumstances, nothing pre Under such is flight, furnishes sufficient corroboration State, served for review. See Toler v. Tex. accomplice an support a [of witness] 290; State, Cr.App., 546 S.W.2d Stein State, conviction. Edwards v. Tex.Cr. Tex.Cr.App., Appellant’s 927. S.W.2d App., 427 S.W.2d 629.” Id. 508 S.W.2d at ground error is of overruled. error, ground In appel his third of non-accomplice testimony in the lant contends he was denied the effective instant case appellant showed that Initially, appellant assistance of counsel. present near the scene of the offense. At complains his attorney that failed to file a appellant the time yard, was seen at the discovery Appellant specu motion. now business had been closed for six Ap hours. lates as to pellant the matters which could have was observed in the company of the accomplice by filing been revealed virtue of such a Chambers near the scene of the motion. We note that Finally, support offense. Cortez there is no appellant observed accomplice and the flee when record for existence of the mat police investigate appellant arrived to ters which maintains could have burglary report. motion, been such discovered such as We non-accomplice conclude that the tes- “the criminal records of the witness States timony in the instant case tended to connect es, statements, production prior of written appellant with the offense and was thus Moreover, showing etc.” there is no as to sufficient to accomplice corroborate the tes- type discovery what of informal occurred in timony of Appellant’s Chambers. first the instant cause. ground of error is without merit. error, In ground appellant his second Appellant further contends his at unduly contends the court restricted his failing object torney was ineffective for right to cross-examine testimony by to the identification Cortez. Specifically, appellant Chambers. com- contention, support In of this plains following two instances points was allowed to the fact sought which he to ask fol- show-up following to confront him in a lowing questions: reflects that Cortez ob arrest. The record “Q. places You’ve been in other standing served underneath then, you?

since haven’t light scene of the offense. street near the Objection provided “MR. DAMBOLD: Your would have Such observations May admissibility Honor. we approach independent the bench? basis for Cortez’ testimony. identification tive counsel. Accordingly, See appellant’s third State, Thоmas v. ground Tex.Cr.App., of error is without merit. objection which The judgment is affirmed. contends attorney should have made would have been without merit. CLINTON, Judge, concurring. joining Without in thé manner which Appellant further contends his at disposes ground Court of the third torney was ineffective because he did not error, judgment. I concur in the “adequately pursue” the cross-examination What concerns me is curious treatment closing argument Chambers and his afforded the claim of ineffective assistance “totally Appellant insufficient.” would of counsel. Ground of error two is over now second-guess have this Court the strat “nothing presented ruled because for re egy of his trial counsel. The fact view” in that per defense counsel did not attorney might pursued another have a dif exception fect a bill of or make an offer of ferent course of action at trial will not proof rudimentary protecting means of — support a finding of ineffectiveness. Blott taught every record that are first year 588; Ho Tex.Cr.App., 588 S.W.2d law student and reiterated perenniаlly in well v. Tex.Cr.App., 563 continuing legal education courses across present our State.1 Failure to file and Finally, appellant contends his discovery motion for is said to be of no attorney was failing ineffective for to ob yet, many experienced criminal moment — defense ject prosecutor when argued person the his attorneys agree with would the opinion appellant’s guilt. agree al as to We scholarly expert’s evaluation that “effective argument improper. that the was How Moses, discovery practice must,” is a Crimi ever, adequacy the of a counsel’s assistance nal Defense Al Sourcebook 7.01.2 § upon is totality attorney’s based the of the though strangers pro “identification of is Harrison v. representation. Tex.Cr. verbially untrustworthy,” United States v. App., 552 151. an isolated Wade, 218, 228, 1926, 1933, U.S. S.Ct. object instance of a failure to does not (1967), majority opines 18 L.Ed.2d 1149 the necessarily render ineffective. any objection that there nothing was to Callaway Tex.Cr.App., 594 S.W.2d that should have been made to identificа testimony, tion that because it divines the witness could have observed applied The test to be in determin clearly enough as he stood beneath a street ing provided whether counsel constitution light. “beyond any Cross examination — ally satisfactory is “reasonably services the greatest legal engine doubt the ever invent effective assistance” standard. Ex Parte 3—is discovery ed for of truth” reduced Morse, Tex.Cr.App., 591 S.W.2d 904. Such sputtering along “strategy.” to as And fi upon a determination will be based the to failing of counsеl nally acknowledging a in Sanchez tality representation. of counsel’s prosecutor “argued” objecting when State, Tex.Cr.Ap., 422. From personal opinion his that was us, ap the record before we conclude that guilty, majority dismisses the matter as pellant provided reasonably effec- “an isolated instance.” Record, See, Friloux, be, g., Protecting prosecution strategy e. Vol. case will what is be, likely Manual Advanced Criminal Law Course the conflict- and the facts which FF; Clinton, (State ‍​‌‌‌‌​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​‌​‌​‌‌‌​‌‌​‌‌​​‌​​‌‌‍1978) Accordingly, ing strategies Bar of Texas Pro- § theories and rest. tecting Appellate Advocacy, (All the Record and discovery practice is a must.” effective Update (State indicated.) Law Bar of Tex- emphasis Criminal mine unless otherwise is —1979 1979) as FF. § 3.Wigmore, § effective, attorney he has to 2. “If a trial is to be theory know in advance what his of the well Accepting proposition appellate that effective- the conduct of state counsel “so lawyer a criminal defense is ness of run afoul of the maladroit as to Fоurteenth “gauged by totality representa- of the Amendment,” Passmore, 594 F.2d at 117. afforded,” assay per- tion still I would not modification, however, subsequent Its sub through analysis formance an first stituted for that characterization find alleged failings seeks to winnow out until representation ing: “It is that the obvious “isolated,” grain one is then find it appellate counsel by petitioner’s retained wanting insignificantly so. an Such II, —but incompetent.” Passmore 607 F.2d approach illserves members of the bar for it panel it at 663.6 But divided when particulars avoids of сritical examination of taking came to the Court to task for know performance to induce neither carrot ing receiving incompetent appellant “was goad improvement nor stick to individual in representation,” yet ordering some “re providing legal assistance to clients. Cer- action,” medial ibid. tainly, rarely it will in relief result case, then, history The of this reveals how complaining appellant. years appel- six pass it came to later regrettable history very this receiving represen- effective lant at last is cryptic case—masked account in note straight appellate tation to obtain forward majority opinion demonstrates, — misrepresentation review of his claim believe, point. judgment After particular trial. To that end and for the sentence another retained still general practicing edification of the mem- practitioner represent appeal.4 him on bar, following bers of the I would make the appellate In this Court the filed brief he dispositions of the issues mentioned sentence, single “Ap- consisted of a to-wit: opinion.. this paragraph pellant prays that this case be reversed and remanded for a new trial.”5 As to that The failure of trial counsel to make a bill remarked, paper the “Obviously, Court this exception proof or make offer of presents nothing for review.” when and where the witness Cham- about impugn bers had been in does not margin, As appel indicated note Circuit, competency. applying The Fifth sought ultimately lant and obtained habeas law, рassed squarely Texas on the action of relief, but it did not become effective until sustaining objections; the trial court in the after the State achieved a denial of certio believe, correctly, it held that such was 12, Passmore, May rari 1980 in v. Estelle right a of the confrontation not denial 937, 100 2155, 789, 446 64 U.S. S.Ct. L.Ed.2d purpose impeachment since the was and our by followed a remand to the federal district showing a of permit merely law does not court entry for of the order for an out of incarceration, requires but a final convic- appeal by time mandated earlier the Fifth Passmore, did, supra, tion. 594 F.2d at 117. granting Circuit. In the relief it the confinement, Fifth panel originally Circuit characterized Whatever his Chambers him, Thereafter, by arraignment requesting 4. Each at without an extension one retained time, by lawyer; represented his first of submitted a “First Amended Brief” was he second; by filing passed. by appeal the for had at trial a on a third. On after deadline account, pauperis proceedings, in forma it on that but it federal habeas Court did not consider nоw, justice represented apparently himself un did examine record in the interest of he the court, successfully suggest The brief did not in the district did better and then affirmed. attorney appointed with a court from Dallas on trial counsel had been ineffective. appeal Appeals to the United States of Court Circuit, got for panel again the Fifth where he the relief 4 alluded to In its own note the majority mentioned in its note 1. How paper the and the one sentence filed in this Court ever, opinion hardly his initial success came the “can be observed that such submission Estelle, 115, 5, (CA in Passmore v. 594 F.2d 118 of active advocate in said to reflect the ‘role an 1979), by majority being California, the one a cited but v. 386 behalf of his clients.’ Anders former, along spe 738, 1396, 1400, 744, modification of the with a 18 L.Ed.2d 87 U.S. S.Ct. cially concurring opinion by Judge (1967).” Coleman. 493 688 subject impeachment may not deny process

was on that due of law if it is “so unnecessarily suggestive account.7 and conducive Sto irreparable identification,” mistaken V.A.C.C.P., 39.14, expressly Article rules vall, 302, 388 88 at That U.S. at S.Ct. out writtеn of witnesses statements from quite depends different on determination scope material, of ap- discoverable “the totality of circumstances surround parently appellant made himself none. A it,” 914, Elliot v. ing attorney does not defense who otherwise 918-919 (Tex.Cr.App.1969 Opinion — may know whether one exists discover the Rehearing).8 And as Neil v. Biggers, 409 prior of a of any fact criminal record wit- 188, 375, (1972) U.S. 93 S.Ct. 34 L.Ed.2d 401 and, exists, for the if one ness State obtain clear,” would later of make admission copy. See Thomas v. 482 showup evidenсe of a without more does (Tex.Cr.App.1972). 218 discovery Since is id., 198, process,” violate due at U.S. designed to enable a criminal defense law- S.Ct. at 381. factors to Other be considered yer to learn that does not already which in evaluating the likelihood of misidentifi- know “the facts on which the conflicting opportunity cation wit include “the of the rest,” Moses, cit., strategies op. theories and ness to view the criminal at the time of supra, filing presenting may one not be crime, attention, degree witness’ woodenly doing аppropriate surely so prior accuracy description witness’ not. That such a motion not utilized criminal, dem certainty the level ipso facto signal does ineffectiveness. onstrated at the by the witness confronta tion, and of time Wade, supra, length between United States and Gilbert id., confrontation,” crime and the at U.S. California, 1951, 18 U.S. S.Ct. 199-200, S.Ct. 382-383. (1967) L.Ed.2d 1178 fashioned an exclusion con procedure widely confrontation once rule ary from the right Sixth Amendment demned substantially protected has become Denno, Stovall v. to counsel. U.S. from successful attack. 1967, 18 (1967), 87 S.Ct. L.Ed.2d 1199 on the hand, day other decided the same that con In the bar case at identification ducting the “widely showup hardly condemned” an implicated issue.9 An questions showups, justifying 7. Now reads the to mean the one in Cole because “obviously overnight delay lineup may trial desired to ask have resulted stay custody Chambers about his since the in detention “of an innocent individual and the offense,” arguing jurors of entitled to possible time were that the interruption of real the search for thе know if Chambers had been in criminal.” custody place since took “in the offense order judgment weight to make an informed as to the 9. By timely objection being sustained Officer testimony.” my perception is not of of where counsel was That precluded telling Wilkerson was from whether going, already for he had as Cortez identified and Chambers voluntarily established persons pointed the same he two had earlier come to his office to a and sworn statement part out to Wilkerson. For his Cortez testified transaction, giving а different version figures that when he saw the two male come juvenile and that Chambers His first in was a the time. light, out to “the in the street under one question being to referred Chambers years front looked that is 19 or 18 old”— to be about places “other then.” since The second six who at the time was Chambers attempt came much on recross later examina- “I one was behind and teen—and the older couldn’t the tion after the State that had shown Chambers get good a look at him.” When too money giving town after statement on left loaned Cortez, brought he them back to officers by plain appellant. to him It was thus knowledge” they my testified that “to were jury the trial court that to and the Chambers light. same two he had seen under the street “stay custody,” did not in and am satisfied directly as he sat there Asked the if territory exploring trial counsel that show that Chambers was was persons, one of the courtroom was only capable relied, “Yes, I think he is one of them.” But lying staying incapable but out trouble agreed mis cross he could be examination he with the law. agо,” quite but taken “since this was awhile night” “that he was not. 696, State, (Tex.Cr. 8. In Cole v. App.1972) It never the Court continued its refusal to must be remembered that Cortez contemporaneous Wade claimed to the two males inside extend and Gilbert have seen appellant; police apprehended professed officer him inability to conceive that pointed near the scene after Cortez toward would tell him story one and him and experienced Chambers. An and to it and then come to swear court and tell сounsel, competent trial evaluating was, the to- just opposite. It counsel conclud- context, tality may of the circumstances in ed, jury’s job to decide.” “the The State objection well have concluded that an would what could have been no closed in more Cortez, be fruitless and thus subtly bolster minutes, than expressing agreement three would lead to a nonproductive Martinez that credibility of Chambers their deci- hearing10 thereby and interrupt delay or sion, winding prosecutor down the and in the trial to the jury discomforture of the or point, say said at “I would that one simply any would not be worthwhile. In just beyond evidence is not a reasonable event, object whether to under the circum- doubt, point but almost to the of over- purely judgment stances is call on a mat- whelming, Jimmy telling Chambers is ter of tactics.11 Quickly, the truth.” he recalled the conver- sation between and Chambers be- view, my In content and extent of cross town; Jimmy fore left then came the re- witness, any examination of certainly mark: “I feel that if the facts in this case witness, governed are never guilt beyond don’t show the defendant’s “strategy” considerations of but flow doubt, reasonable then I’m not sure as a technique, from individual awareness of prosecutor, put I can on a case that does. I purpose and an abundance of caution. See thing think you every we showed (Tex.Cr. Johnson v. 614 S.W.2d 148 —the any that could have ... this case App., 1981) [made] demonstrating note stronger, they if caught would be them pursuit mindless of an adverse witness by actually building.” Concluding, inside the may the cross examiner quagmire. lead to a рrosecutor submitted “that Franklin Finally, though improper even it is for a guilty” “guilty Passmore reiterated prosecutor personal opinion to indicate his doubt, just beyond a reasonable I think that an guilty objection accused is and an guilty beyond any he’s doubt.” This last error, must preserve be made to still time, however, any he omitted reference to silence in the may repre- face of it not be “facts,” “evidence,” “testimony” or the like. opening argument hensible. In his added, 18th, He then September “On prosecutor jury told the that he had tried to Brick, went into Acme with Marvin Pass- put together puzzle” ‍​‌‌‌‌​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​‌​‌​‌‌‌​‌‌​‌‌​​‌​​‌‌‍his case “like a little lookout, Jimmy more as his and with Cham- by leaving piece Chambers as the last of it. him, got caught. bers and he That’s help presented He then a detailed discussion of exactly happened.” what With a reminder witness, the testimony especially of each jurors they that on voir dire the had said Chambers, coming togeth- and showed how proved “if I guilty would return a verdict of completed er it puzzle. all There was my you,” he them now to do case to asked it; nothing objectionable argu- about that. factually strong logically ment was ef- Taken out of context and heard alone the Appellant’s briefly fective. sorted personal expression if reiteration is an jury out the so that were opinion. expression Almost an identical to convict “it would have to do it on the testimony” improper He in Baldwin v. of Chambers. recalled the held Chambers, (Tex.Cr.App.1973 gros- as were inconsistent affidavit made S.W.2d 9 Yard, surrounding complemented fence the Acme Brick аnd he 11. “Defense counsel is to be for telling objects, only remembering further disavowed Wilkerson that he that he who often overruled, objections alienating so. his account is limited to done risks have fence, coming seeing patience out to jury them outside the not test the even if he does and, later, light affirming Beto, the street under the they presiding judge.” Williams v. pair first seen. 698, 5, 1965). were the same he had (CA F.2d (Tex.Cr. v. 437 S.W.2d 842 Martinez App.1970). 755, Clayton ser ones (Tex.Cr.App.1973). given But the over- setting made,

all in which the remark was prepared am trial tо fault for objecting. For all reasons I concur in the these judgment. GILES, Appellant,

Ronnie Charles Texas, Appellee. The STATE of No. 60957. Texas, Appeals Court of Criminal Panel 3.No. June Rehearing July Denied Allison, Jr., appeal only,

W. John Dal- las, appellant. for Wade,

Henry Atty., M. W. T. West- Dist. moreland, Jr., Macaluso and La- Paul Sue Dallas, garde, Attys., Asst. Dist. Robert Huttash, Austin, Atty., State’s State. ODOM,

Before W. C. DAVIS and McCORMICK, JJ.

OPINION

ODOM, Judge. appeal This is an from a conviction for was assessed at twen- murder. Punishment ty years. ground

In his of error request contends it was error to refuse his charge that a on the lesser included offense ‍​‌‌‌‌​‌​​‌‌‌‌​​​​‌​‌​‌‌​‌‌​​‌​‌​‌‌‌​‌‌​‌‌​​‌​​‌‌‍manslaughter be submitted involuntary appel- introduced jury. to the State lant’s confession:

Case Details

Case Name: Passmore v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 27, 1981

Citation: 617 S.W.2d 682

Docket Number: 51792

Court Abbreviation: Tex. Crim. App.