Quinones v. State

and not reviewable this Court.2 We

therefore appellant’s ground hold that presents

error nothing for review. Cf. (Tex.Cr.

Houlihan v. State 579 S.W.2d 213

App.1979); Lopez (Tex.Cr .App.1977).

We have examined the record before us

and, finding error, no reversible affirm the

judgment of conviction of the trial court. Henry QUINONES, Appellant,

John Texas, Appellee.

The STATE of

No. 62117. Texas,

Court of Appeals Criminal

En Banc.

Jan. 1980.

Rehearing Denied Feb. 1980. (Tex. McIntyre Similarly respect held in 587 S.W.2d 413 2. with dis- to conditional Act, charge App.1979). under the Controlled Substances Cr. 4476-15, 4.12, V.A.C.S., recently Article § Houston, Schneider, Stanley appel- G. lant. Vance, Atty.,

Carol John S. Former Dist. Jr., Atty., Michael C. Holmes, B. Dist. Hardin, Kuhn, Rusty Jack D. Bodiford Houston, and Robert Attys., Asst. Dist. Huttash, Austin, for the Atty., State’s State.

OPINION DALLY, Judge. appeal

This from conviction an punishment The is death. capital murder. grounds of error Appellant various raises tape recording the use of a stemming from appellant and an between of conversation the accomplice. claims that Appellant also that court duplicitous, the indictment discovery or inde- refusing erred in to order pistol, pendent examination failed to define charge jury guilt on offense, of an extraneous evidence in the improperly admitted offense was charge to punishment and that phase, was insufficient. jury punishment on sup- evidence, is sufficient to conviction, so be summarized port the will clearly may be more discussed matters of June understood. On the afternoon Leal visited Si- appellant and Robert and Sendejo monía her home. Both Leal Sendejo carrying appellant noticed Sendejo house pistol. Appellant left the ice neighborhood but soon returned in a truck, appel- which the cream truck. being by driven Mo- hijacked, lant had hammed Ali Vahdat. Sendejo over

Appellant Leal waved get Ap- in. to the and told them truck begin driving to a pellant forced Vahdat During the drive-in theater. Houston-area drive, pocketed money appellant truck, wal- money, watch and took Vahdat’s let, struck appropriated tape player, told gun. Appellant then Vahdat with a Vahdat the back Leal drive and forced re- struck Appellant of the truck. Vahdat conversation, peatedly during police trip remainder arrested the theater. capital murder. theater, appellant everyone At the told Appellant July on 12. was indicted On

that because he was parole and did not July hearing court trial held a jail want to return he would have to kill appellant’s Paragraph (b) pretrial motions. Sendejo Vahdat. fled. Leal also aban- pretrial appellant’s discovery motion doned the truck and saw leave the thea- discovery asked for of “all recorded state- ter. thirty appel- About later the minutes Defendant, allegedly made if ments lant returned in the truck and informed any continuing hearing . .” At Leal that he had sexually assaulted Vahdat. court, motion, reviewing engaged Other witnesses moaning overheard Vahdat following colloquy: and pleading for his life. b.): Paragraph “THE All re- COURT— Appellant ignored attempts by the thea- allegedly corded made statements ter staff to dissuade him from killing Vah- Defendant. Accompanied dat. by Gilbert Mendez and you speaking “Are mechanically Collins, Wayne Richard who both followed recorded statements? vehicle, him in another drove “MR. COLLINS of the defense [one ice cream truck away from the theater. Yes, attorneys]: your Honor. Late evening the abandoned ice cream Observations, “THE COURT: Mr. Bod- truck by police. day, was found The next iford? the body of Ali Mohammed Vahdat was “MR. BODIFORD Assistant Dis- [an discovered in a wooded area outside the There Attorney]: trict are none. city Houston limits. The cause of death “THE COURT: That would not be dis- gunshot was a wound the No head. coverable, provisions if I understand the weapon or bullets were found at the scene. I of Article 39.14. do not a me- believe Expert testimony indicated that the fatal chanically recorded statement discover- bullet have ranged could from .25 .38 in under Article 39.14. able caliber. anyway. “You say you have none How News of appeared the death in the news- that; you do want me to state denied? papers. After the reading news ac- an “MR. The BODIFORD: asks it State quaintance Rosas, of appellant, Christina be denied.” appellant asked about it. She testified that request discovery was denied. Al- killing, laughed admitted the though appellant himself about was aware of the it and stated: going “You’re to see tape existence of me on from time of Channel 11 his and Channel 13. John arrest, attorneys Henry Quinones.” his first learned of the tape attorney September from Collins’ On Wayne June Richard Collins was 13. apprehended on charges unrelated at a trial, September day On first gave Houston motel. Collins police appellant attempted production to move for 7.65 pistol mm. automatic did he said tape recording. judge The trial re- not belong to him. testimony Other identi- motion he fused hear the since held that pistol fied this as the being one carried untimely September filed. On 25 the witness, June although Leal, testimony introduced how State about pistol being Robert described the as tape recording a .32 was obtained and made. pistol. ques- caliber automatic During tioning, day, appellant The next filed a motion for began giving Collins information continuance, about requesting the Vahdat additional time to murder. On June agreed tape Collins to wear and a tape, in an examine motion court recorder effort to secure a taped appointment independent expert be- of an conversation tween Collins and appellant tape. Both about examine of these motions crime. After receiving the denied.' tape of were “QUINONES: worry Don’t about no played were before

Portions man, worry it no heat don’t even about during guilt of the trial jury phase Morales, long, Johnny I during more. Just as played and the entire it, they you if know told don’t punishment phase. contained a word) night, him in the which, (indecipherable according tapeover fifteen second it, man, me investigated but let tell they witnesses, was caused an the State’s me, nobody nobody seen ain’t you, ain’t pressing accidentally officer the “record” car, man, anybody you, seen in ain’t on the machine. The recorded con- button nothing to do you even knows fuckin had versation, part including pertinent and man, me— Only person knows with it. tapeover, was follows: ones who saw actu- you only “QUINONES: Went, I boy, mmm tell —see me, man, you Gilbert. just al murder you gonna day. I call that chick out that ain’t even been drive-in Gilbert clear, man. staying more. He’s TAPE, IN BREAK IN TAPEOVER Digit. “COLLINS: DIV., LT. THOMAS’ NARCOTICS “QUINONES: I ain’t— OFFICE move, moved He “COLLINS: —he Four, police “SCHULTEA officer]: [a didn’t he? man, testing, go to ID act one — Yeah, “QUINONES: I think so. pick up you like committed a crime — nothing. a little stealing I did ain’t been right there. there, just bullshit here and some stealing go “COLLINS: Let’s ahead and listen mean, but, uh, shit, I’ll you know what I it, part just fixing get to the he’s to, shit, you if want you tell about some where— man, us, man, it will you with but go can Where we police “NIXON officer]: [a cut, loan me my you can come out to hear. want mornin, man. We steal your car in Quit foolin with it— “SCHULTEA: mornin, man, early pick up . cousin, man, which one I’m my you know TAPEOVER, 15 DURA- END SECOND one, about, man, all talking big with TION do, goin him Me and them tattoos? robbery, going to be no heat on not no man, car, just we need is this all some- man, cops, cops Hey “COLLINS: on, like hot thing up load some shit got gun. items. “QUINONES: I know that. Yeah, . . . “COLLINS: well it, I They got don’t think “COLLINS: going to do is “QUINONES: All we though. it come from they know where shingles. steal some reported Well “QUINONES: hey, they it hot, ones, people who had it. ^[*] n ^{[*] [*] [*]} n They did . “COLLINS: with that you What’s do “COLLINS: motherfucker, Mex- you get that Where’d deck, might get that man, I think ico or somethin? man, in fucking put it and mother fucker here, “QUINONES: From that’s what ride, my man. uh, to, hold-up we used the 13G’s. up it “QUINONES: you Can hook What, the THC? “COLLINS: fast, right man? heat comes “COLLINS: “QUINONES: * man, there * down, man, What, ain’t no * There ain’t like if —if—if the * heat in that man. like, * no heat what * a— that, man. know — dude, “COLLINS: ^[*] I that, don’t ^[*] when —when believe I could That scared —I ^{[*] [*]} you shot that ^[*] have done don’t ^[*] you “QUINONES: Huh? about bond man? got man, shit, I worry

“COLLINS: a weak stomach. don’t about man. I even think it man. don’t even “QUINONES: Well, Don’t shit man— it, Shit, talking I be like about man. I to at happy “COLLINS: was too bien, shit, my I ain’t passin time like ’sta man, time high, I mean I was man . thought even seen —I bout— ain’t even it, going it’s bout cause I know what “QUINONES: Not did I it because was it,of be cool for and as far my me on side man, high, hard, but I thought it side, side, my than you it’s a lot cooler man, dude, man, I didn’t want to kill that man, got I cause a lot more heat comin I him, didn’t want to kill you know what looking me, just down at that’s a and lot (Quinones I mean? yawning talk- while me, seen know I ing, unintelligible you witnesses what words.) uh, mean, won’t, they they and talk if do I “COLLINS: read about this shit in out, mean, I you find know what cause the newspaper man. they’re scared —scared.” “QUINONES: Yeah, they they me told got the clippings it don’t somewhere. matter man, busted. chance of whenever ^[*] know, man, between robbery, ^[*] murdering they Anyway, uh, ^[*] you going out. find man, it’s him, man, I’m it, ^[*] just or did going you taking —it’s ^[*] you, put and to read just uh, ^[*] pen, get —I up continuance, (3) in (2) pendent expert (4) permitting discovery will deal with each of use of the serts that In four basic in not admitting granting appellant’s the trial court erred: tape recording to examine arguments relating the tape in evidence. We these appointing in turn. motion for a tape; recording, (1) an inde- to the in not and as- man, I you going “COLLINS: tell I’m analyzing issue in The threshold quit, know, you like coming around for discovery question is whether re a while. cording was discoverable within material “QUINONES: cool, All right, that’s meaning 39.14, of Art. V.A.C.C.P. Art. brother, said, like I but the only reason I provides: 39.14 down, you asked cause I need little “Upon showing motion defendant money do, all going see we’re like I said, good upon cause therefor go do, and see and notice to what we can me him, parties, and court cause he other knows places, and he help. may pro- needs some I order the maybe State ... fifty, make dollars, permit hundred hundred, inspection copy- two duce and and within a day, man, go cause we or early, give ing photographing by on behalf of you half. designated See he’s a junky, gets any so he the defendant of docu- half, ments, try I don’t papers, to take none of his written statement cash, man, it, defendant, cause he needs he—he’s sick (except statements of written man. except product witnesses and work the investiga- counsel case and their

“COLLINS: Yeah. tors, book, report), and their notes or “QUINONES: See, cut, my you half of accounts, letters, objects photographs, or mean, know anywhere what will be tangible things not privileged, con- hundred, from fifty to a you gotta you— stitute or contain material evidence gotta man, game the play and— any matter action . involved in the .” car, you “COLLINS: can use the I— man, car, but the —there’s heat on man, cause, you know, it, they saw if —if Tape recordings by of a statement the ac- you know, at place, know— you “objects tangible things cused are or not

“QUINONES: much, privileged, which or contain evi- worry You too constitute man, good any I take care my people, like dence material matter involved in you keep talking night, when about the action.” 940 duty purposes important effectuate product privilege

The work has pretrial been to documents which such the reduction generally discovery, limited not evi surprise themselves do contain admissible of a fair trial. and the insurance sum dence of the offense but instead are discretionary The trial court did have maries of the evidence or discussions tape re- discovery power order prepared for the the offense that have been State, 121 cording. v. 587 S.W.2d Bates of law officers. internal use enforcement that, We also observe (Tex.Cr.App.1979). has privilege thus been extended practice for the generally, the better it is investigative reports prepared by offense or any defense disclose to the prosecutor to State, police, g., 571 e. Brem v. S.W.2d of the de- written or recorded statements State, (Tex.Cr.App.1978); Holloway 314 v. custody. in his ABA that are See fendant (Tex.Cr.App.1975); 525 S.W.2d 165 internal Standards, Discovery and Procedure Before prosecution e. v. papers, g., files Mott Trial, (Tent.Draft 1969). 2.1(a)(ii) Sec. State, (Tex.Cr.App.1976); 543 S.W.2d 623 State, (Tex.Cr.App. However, 18 Nelson v. 511 does not have S.W.2d 1974); reports analysis of nar in general right discovery of evidence cotics, State, g., e. Alba 492 555 State, v. S.W.2d even if the possession of the State, Feehery v. 480 (Tex.Cr.App.1973); appellant’s own statements. evidence is also (Tex.Cr.App.1972). S.W.2d 649 It has 504, LaGay, 357 U.S. 78 S.Ct. See Cicenia v. by prepared been extended to statements 1297, (1958); Dowling v. 2 L.Ed.2d 1523 interviewing law enforcement after officers 533, 43, State, 317 167 Tex.Cr.R. S.W.2d prospective witnesses. Hoffman v. 886, 127, denied, 3 U.S. 79 S.Ct. cert. 358 (Tex.Cr.App.1974). 514 248 How S.W.2d it (1958). Art. 39.14 makes L.Ed.2d 114 ever, rule, pre under the Gaskin statements is on what discover clear that the decision pared witnesses the State are by for is committed to the discretion able id.; privileged testify, nor does after issue, then, is whether the court. The trial any privilege extend to statement refusing in its discretion trial court abused g., E. Mendoza jury. used before tape recordings. discovery of the to allow (Tex.Cr.App.1977). 444 ruling by the trial court The basis direct, recording This mate tape contained incorrect; was based on incorrect it offense its con rial evidence about the recording existed assumption tents and Col were dictated incorrect belief and it was based on the lins, police officers. When exist, that, it would not even if the did incriminating police record the statements But reasons behind be discoverable. suspect subsequently criminal who of its discretion the trial court’s exercise offense, sub charged there is a with error if the deci will not create reversible case, that, as in this probability stantial basis, itself, purported of its regardless sion these will used recorded statements the limits of court’s did not exceed strictly inter trial and were not meant Agurs, discretion. Cf. United States recording Moreover, nal use. if 108-10, 49 L.Ed.2d 96 S.Ct. U.S. would be exculpatory material contained (1976) analysis explain (using similar discoverable as a matter of constitutional role this issue in ing appellate right. Brady 373 U.S. Maryland, See context). constitutional (1963). In S.Ct. L.Ed.2d an to the recorded statement contrast legal employed standard witness, product privi work ordinary trial court abused whether the determining not been lege designed for and has was was the error not whether its discretion is of statements applied to shield the recorded obligated court is not harmless. A trial the accused. merely because evidence discovery of allow the defendant. will harm recordings its admission such A holding that State, 179 571 S.W.2d handicap Compare v. Hollowell would could never be discoverable State, 583 v. (Tex.Cr.App.1978) of its with Stone performance the trial court

941 Illinois, 2562, Instead, 786, 92 (Tex.Cr.App.1979). S.W.2d 408 S.Ct. 33 410 v. U.S. Maggio, (1972); Texas has chosen to follow a rule which 706 v. 540 L.Ed.2d Garrison 1976). (5th Keeping requires permit discovery the trial court to 1271 Cir. this F.2d mind, only sought apply if it to proceed the evidence is material standard in we the defense accused. this case. during tape recording was made Traditionally, this has de Court crime, investigation prior police

clined stemming to find reversible errors arrest; a appellant’s it is not custodial con- from if the discovery defendant dispute and there is as to the fession exculpatory mitigating denied access to or recorded appellant’s state- voluntariness evidence would which have affected the importantly, More there are no ments. outcome of g., the trial in his favor. See e. on the are exculpatory statements State, (Tex.Cr.App.1976), Granviel v. 552 S.W.2d 107 way. in a case any This is not where the denied, 933, t. 431 97 U.S. cer prosecutor sought to withhold evidence that (1977); S.Ct. 53 L.Ed.2d 250 Love v. advantageously the defense could have State, 6 533 S.W.2d (Tex.Cr.App.1976); Bell just presented jury; oppo- to the State, 442 (Tex.Cr.App.1969); S.W.2d 716 site. State, (Tex.Cr. Means v. 429 S.W.2d 490 App.1968); State, Nevertheless, argues supra. see also Bates that he by More in the failure to discover recently prejudiced Stone v. recordings ap- 410 because counsel for (Tex.Cr.App.1979) and Frank v. State that, they known pellant claim had of the (Tex.Cr.App.1977), S.W.2d 12 this Court accepted prosecu- a tapes, has would have expressly “materiality” chosen to define exchange in plead guilty offer to under Texas in torial process law the due terms sentence, life an offer employed recommended Supreme Court in United which had been withdrawn time Agars, States v. U.S. S.Ct. learned about existence of the counsel (1976), 49 L.Ed.2d 342 one more tape. prejudice This claim of does not recent elaborations on the disclosure re “material,” make as that term is quirements Brady v. Maryland, supra. “ Agurs. in defined Stone and ‘. . . unless deprived the omission trial, of a fair defendant there was no argument essentially This com requiring constitutional violation that the plains way prosecutors in which the aside; verdict be set a consti- absent plea negotiations, to conduct chose their violation, tutional there breach was no prosecutors it means of because the prosecutor’s duty to constitutional but, plea guilty negotiating fered in . disclose possibility The mere plea, they this chose not to reveal evidence that an item of undisclosed information appellant asserts would have caused might helped defense, might have We will not accepted. their offer to be trial, have affected the outcome of speculation why prose in indulge does not “materiality” establish during plea negotia cution made choice constitutional sense.’ The Court stated we will not intervene into that tions and imposes the test for materiality plea The offer of a and the cir process. higher on the than burden defendant surrounding gen offer are cumstances determining harmless error standard. In prosecu erally within the discretion the omission ‘evalu- materiality, must be State, 579 S.W.2d 224 tor. DeRusse v. record,’ ated in the context of the entire prosecutor choos (Tex.Cr.App.1979). If the only constitutional error is committed in mak sufficiently persuasive es not ‘if the omitted evidence creates reason- reasons, offer, or if he ing his for whatever ” able doubt that did not otherwise exist.’ all, defendant makes no offer at part Stone legal S.W.2d at without Additional equally recourse. quoting Agurs, ly, discovery prior United States v. evidence U.S. of the State’s 108-10, 112, permit plea 96 S.Ct. 2392. Moore as to effective See also trial so more 942 day testimony. Appellant component is second of asserts

bargaining not a of the consti- right of since the “unexpected tutional effective assistance that the occurrence of testi- analysis began” counsel. The true focus of returns trial was the introduction explained Agurs, tape the 25 record- mony September test on Stone However, which is not met in this case. for ing been made. counsel had hearing appellant on the testified at the Appellant complains he also for were aware motion new trial that was trial and generally denied both fair as tape early as of the existence of the opportunity the to obtain effective assist days September before the trial five prosecutor’s ance of counsel of the because began. testimony Admission of failure to disclose the existence of unexpect- not September 25 was an on judge during pre recording the trial of during ed trial. Admission occurrence hearing discovery. trial on the motion for reasonably been testimony such could have trial, hearing At on new the motion for State, 501 g., E. Jones anticipated. attorney the assistant district testified that Appellant (Tex.Cr.App.1973). 677 S.W.2d hearing he aware of fully had been he showing to how not make the also did tape recording but the existence stat See, from the continuance. would benefit answer, none,” really ed that his “There are State, (Tex. 392 g., Ewing v. 549 S.W.2d e. was meant to that he did not believe imply State, Cr.App.1977); Leach S.W.2d any tapes there were that were discover did (Tex.Cr.App.1977). The trial court regardless equally, improper, able. This is denying mo- discretion in not abuse its involved, sincé, good of the faith of those tion. circumstances, discoverability under court, prose not the was decision for the that the trial Appellant further contends approval cutor. We show do mean to his motion for overruling court erred conduct, yet for this we do not hold that expert to appointment independent of an is of this conviction. sanction reversal its tape recording determine review taken, problem, This and the action on was also filed authenticity. This motion realm the trial primarily within beginning of September well after judge. appellate perspective, From the However, were even if the motion trial. inquiry process still whether due preserved appellant properly has timely, ex already accorded under the standards in a motion appeal error for ground sup plained. Again this is not a case for new trial. evi pression exculpatory evidence. The the motion primary purpose of incriminating dence was bring to the attention is to errors new trial gained has not shown that he would have an that court and allow of the trial court the trial any exculpatory benefits in invoking them before opportunity to act on pretrial case from disclosure. of this process. Effectuation appellate major argument made The second the record helps insure that purpose also recording concerning the by appellant the error the nature adequately reflects granted is that the trial should have court appeal. complained of to examine the his motion for a continuance after the be- tape. This motion was filed right no absolute had Appellant Therefore, ginning of to obtain trial. independent expert court-appointed ato required satis- continuance right has tape. This absolute evaluate the “by surprised he was fy the trial court that defendant where the only been extended trial unexpected since the some occurrence requests independent examination an began, diligence could which no reasonable offense, criminal physical evidence 29.13, . .” Art. anticipated have case. drug possession drugs in a such as V.A.C.C.P. (Tex. Terrell v. See Detmering Cr.App.1975); The motion for continuance was filed evi- Such (Tex.Cr.App.1972). September before the start of S.W.2d legally dence is “indispensable to the “MR. HARDIN: . . As State’s . to Para- State, v. supra. Tape case.” Bates record- graph willing the would be State case, ings very like the one in this while any type request honor this time to are incriminating, legally indispens- not so experts to check defense wants to—as able, id.; their exclusion from evidence and tape verify authenticity and proof would not affect the essential that they orig- on the run whatever tests want appellant committed an offense. If tape inal now in evidence. the Court Consequently, to show error suggests willing, would be the State that court, ruling of the re was possible is for cer- it number five. We quired appointment to show that of the nothing to tainly have hide as to expert was necessary to a fair trial in the authenticity tape. they an of the If have tape case. The was well be authenticated expert it is posi- case the State’s its fore admission into The evidence. State tion, willing, if is are the Court offered, through also a testimony, credible welcome to it.” explanation for the fifteen second deletion Appellant’s say anything counsel did not tape explanation in the their is and consist requisite further about the matter. The ent with transcript tape of the showing potential the availability bringing record. In this matter the trial testimony expert of the was attempted. court’s attention at the motion for new for Nothing preserved review. trial, appellant obligated was to show or attempt (1) to show: expert that an was final contention respect with (2) available for the court to appoint and tape improperly that was admitted that this expert given would have testimo predicate into evidence. The for admission ny useful to the Rodriguez defense. v. See tape recordings into evidence was set State, 513 (Tex.Cr.App.1974); S.W.2d 22 State, forth in Edwards Parsons v. 160 Tex.Cr.R. (Tex.Cr.App.1977): (1954); Quails State, S.W.2d 643 131 Tex. (1) “. showing . a the record- that Cr.R. 711 (Tex.Cr.App. S.W.2d ing taking capable device was testimo- 1937). showing, Without a such both the ny, (2) showing operator a that the of the trial court and being now this Court are (3) asked order pure competent, new trials based on device was establishment speculation. authenticity and correctness recording, (4) showing changes, a Appellant did his reurge request an for additions, or deletions have not been independent examination of the at the made, (5) showing the manner of the hearing on the motion for new trial. The (6) preservation recording, discussion was as follows: identifi- speakers, (7) showing cation of “MR. SCHNEIDER: In regards to Sec- 39.14, tion 5 under I testimony believe we that the elicited was had voluntari- right to expert an appointed the Court ly any made of induce- without kind tape. to determine the authenticity ment.” We made request once when it was Id. at 733. The Edwards court added introduced into evidence—or believe requirements some of need these did not third trial day request we made a proof if they direct be inferred from could appointment expert pur- of an for that testimony. Id. pose. Derming (phonetic) In the case of Appellant argues predicate was 43, S.W.2d, volume State defective because been indigent said an ex- had altered entitled to an pert. tapeover fifteen second and because showing

“For there was no that the statements these reasons we ask Court to grant our motion trial. Wayne voluntary. new of Richard Collins were

“THE At the into time COURT: Does the State have introduced anything? evidence, appellant objected, stating: confession). damage which the record- previous “We our mo- would renew all admissibility to objections may tions of Collins have added and to ed statements himself, previously appellant along and by of State’s Exhibit 39 to that done Honor, evidence, prior yesterday, your incriminating heard to and sois with the other yesterday after- also in the courtroom insignificant relatively admission noon." was harmless error. of these statements Randolph, 99 S.Ct. 2141 — 43 Parker v. at See objection inform either This did not J., concurring); (1979) (Blackmun, Schneble prosecutor trial which of the judge or the 427, 1056, Florida, 92 31 v. 405 U.S. S.Ct. requirements specifical- seven had Edwards State, (1972); Harrington 565 L.Ed.2d v. Califor- not been met. As in Harris v. 340 ly 1726, nia, 250, 23 L.Ed.2d (Tex.Cr.App.1978), we hold that 395 89 S.W.2d 66 U.S. S.Ct. objection Simpson Wainwright, was 439 (1969); to admission 284 general denied, error.” Id. at 70. preserve (5th Cir.), “too 402 U.S. F.2d 948 cert. 2199, (1971); 1011, 91 29 L.Ed.2d 434 S.Ct. addition, re In Edwards (Tex.Cr.App. 217 Carey v. 455 S.W.2d quirements any not mean that alteration do 1970). tape per in a se inadmissi renders the is ble. If is accidental and the alteration ap- Returning to consideration presence sufficiently explained so that its error, remaining grounds appel- pellant’s reliability not and trustwor does affect du- indictment was lant contends that evidence, recording can thiness charged ap- plicitous. The indictment not be trial court did still admitted. The in the course of commit- pellant did “while accepting expla its discretion in abuse kidnapping commit ting attempting and in this nation for the alteration case. death intentionally cause the robbery, prove There was also need Ap- . .” of Mohamad Ali Vahdat the recorded statements of Collins charges argues that this indictment pellant voluntary. relevant statements were charging two by two offenses different by The volun- appellant. were those made aggravating circumstances the different statements, ap made tariness of those In the capital which this a murder. make pellant apprehension, his or before arrest murder indict- capital context of a similar questioned. not ment, reject- has considered Court argues ad Appellant further appellant’s Jurek v. ed contention. recording an uncon 934, (Tex.Cr.App.1975), mission of the was 941 right 2950, confront 262, stitutional denial of his aff’d, 49 L.Ed.2d 428 96 U.S. S.Ct. Wayne and cross-examine Richard Collins granted on corpus relief (1976), 929 habeas States, Cir.), U.S. (5th under Bruton v. United 391 reh. grounds, 672 other 593 F.2d 1620, 123, (1968). 20 L.Ed.2d 476 (5th S.Ct. Cir. F.2d 590 banc granted, en improper use the Bruton held that was 21.- 1979). under Art. urges that Appellant inculpate confession of a codefendant V.A.C.C.P., must 24(b), each distinct offense joint their trial where defendant This paragraph. alleged separate We does not take the stand. codefendant offense. alleges only one distinct indictment in the doubt that the statements Collins State, supra. Jurek constitute a confes recorded conversation complains that Appellant next event, not any sion. In this case does appel refusing erred in to allow trial court present problem appellant a Bruton because (ap mm. inspect lant to view and the 7.65 inculpated his state definitely own caliber) pistol automatic proximately .30 his recording, ments those of police. The offi gave which Collins to the Randolph, Cf. Parker codefendant. de pistol incorrectly cer who received 60 L.Ed.2d 99 S.Ct. U.S. This weapon. as a .38 caliber (admission de scribed it (1979) (plurality opinion) Leal into evidence after pistol allows was admitted “interlocking” confession fendant’s pistol as the which nontestifying codefendant’s identified it admission of “Now, therefore, had you in his if believe possession the time the ice from the cream hijacked, although truck was beyond Leal evidence doubt that reasonable defendant, QUI- described the pistol, slightly inaccurately, as HENRY JOHN NONES, did, Texas, County, .32 caliber automatic. Leal’s identifica- in Harris tion of was pistol challenged at the or about June while in the pistol trial. The properly committing attempting admitted course demonstrative evidence of pistol kidnapping, commit intention- robbery or carrying at the time Leal ally cause the death of Mohamed Ali witnessed Vahdat, gun, his activities. by shooting you him with a guilty of will find the defendant the of- There eyewitness testimony was no about capital say by of and so fense murder the murder of Vahdat. The record does not your verdict.” show any direct evidence as to the whether charge jury to required This the find all of 7.65 was pistol weapon. mm. the murder of the the constituent elements offense of expert The testimony was that the fatal to capital guilty murder in order return a ranged bullet could have from to .38 in .25 Appellant argues charge that the verdict. caliber. The fatal bullet was never recov- does not define the offense of murder. ered. A of general vicinity search the This is incorrect. Murder was defined in found, where the was body a rural area Houston, portion charge applied that of the which outside yielded old some hulls and, the exception from law to facts with police special a .38 caliber and some shells; expended culpable mental which the shotgun state court but no bullets or elsewhere, shells were ever recovered did define the definition em- that were linked to the to killing pistol ployed understanding. or terms of introduced at common trial. objection Appellant did not raise this to the charge at trial no court’s and fundamental legal standards for of the review error is shown. rulings trial court’s on discovery inspec- and tion of evidence have already phase, been dis- punishment appel At the Discovery cussed. inspection pis- or alleges lant that error was committed in tol could exculpa- not have resulted in any admitting evidence that commit tory appellant. benefit for Since State offense, namely, ted an extraneous the arm never proved the pistol was the murder robbery of ed an adult bookstore. Evidence weapon bullet, and never found a fatal bal- unadjudicated extraneous offenses can listics comparisons would have been fruit- punishment phase be admitted in the of a best, less. At appellant might hoped have murder capital trial. Garcia prove pistol 7.65 mm. was (Tex.Cr.App.1979). Appellant S.W.2d the murder weapon. But even this conclu- claims, however, given that he no no sion would not have benefited present tice evi State intended since a link between the 7.65 and pistol mm. dence of this offense that he was thus and unimportant murder was to the State’s opportunity effectively denied an cross- case against appellant. We con- therefore Brevelle, employee examine John clude that the trial court did abuse its to the adult bookstore who testified crime. failing discretion discovery to allow or Rusty Hardin, an District Assistant At- order independent ballistics examination of for Harris testified that torney County, pistol. did not Brevelle would State know that

Appellant also day, contends that until Before that testify day. charge given jury only at the close the offense knowledge their was a guilt phase file, define trial failed to in their page report one offense capital charge gave murder. The the ab attorneys the defense had been allowed to conduct, review, stract the robbery. definitions intentional that mentioned robbery, kidnapping applied testimony reproduced and then on State’s this issue the law length to the facts as follows: in order detail unusual extraneous robberies circumstances behind the admission of this committed your testimony. Mr. Hardin testified: man due a confession of co-defendant. When we went “. . This witness was talked to check on those robberies representatives the first State for preparing or so week before for tri- time this afternoon around 2:00 o’clock. al, no we determined them in two of He photo display was shown a which until dropped identifications. we So 3:00 today o’clock we had intention of one, which them. That in the third he using even talked about and identi- one, giv- is this one witness had defendant, Quinones, Henry fied the John photo en but Art a tentative I.D. only and informed us was he the that not up it. Collins not followed had man who robbed him the same but was he understanding His to me was lineup heman earlier attended a with on had didn’t think there ever been July year the 12th or 13th of this be. lineup. supposed to There was identified. days ago He ten checked files prosecutors’ “At that time in the State no, never and said that there only thing files the that existed about the we did lineup. We assumed was single page report case a offense robbery of have an I.D. on the third robbery. which mentioned the heWhen we found adult until bookstore lineup he a told us had attended today. out past on we were unfamiliar this case “Q. for subpoena When issued with, investigator we sent an over to Mr. Brevelle? Divi- Department Houston Police Records pulled report sion and offense response phone the entire He in call “A. is a brought He that back over supplement. Attorney’s from the District Office this approximately here at 3:00 o’clock He approximately at 2:00 o’clock. we afternoon and from that determined of by representatives met previously in fact this witness had Attorney’s District Office in Henry Quinones identified John a line- 2:30 or 3:00 today first time around up year the 12th or 13th of this he July with all assurance o’clock and charges but no filed. That is the were to Dis- talked a never met or was. time we had man first we knew that this until this case Attorney trict possibly available as a witness and even this afternoon.” stage him the punishment would call at its in The in bad faith State did not act approximately ago. half an hour a advance notice give appellant failure * * # * * * testimony of Brevelle. circumstances, appellant Under these “Q. Collins, [by attorney]: Mr. a defense may continuance have been entitled report Isn’t in fact the offense V.A.C.C.P., 29.13, have addi- under Art. Collins, Art who the same detective response this prepare a tional time to case, worked on this was also evidence, ma- concedes was which the State evidently talked to (cid:127)officer However, appellant unexpected. terial and these witnesses? The absence request did a continuance. “A. [by Mr. Yes. Hardin]: deprived the request of a for a continuance “Q. And showed him photographs properly opportunity trial court of an defendant? ap- surprise complained remedy Yes. “A. State, 65 Tex.Cr.R. pellant. Graves See “Q. Was that information within State, Bryant v. (1912); 961 144 S.W. Attorney’s file District time (1896). With- 978 35 33 S.W. Tex.Cr.R. July? hearing of our motion in nothing presented is request, out such 924 It 496 S.W.2d “A. was not in the D.A.’s file. review. Hubbard possible (Tex.Cr.App.1973). discovered three there were

947 that, Finally, explanatory charge contends in that an is necessary to the punishment phase, the have jury should disregarding the keep jury from evi- been charged that: presented “Evidence properly King before it. In dence considered, mitigation penalty may (Tex.Cr.App.1977), cert. de desire, jury determining should the nied, U.S. S.Ct. answer to any special Ap issues.” (1978), Court held that L.Ed.2d this pellant jury charges incorpo submitted two questions in Art. 37.071used terms of com- rating language this and both were denied. understanding required spe- mon The trial special court submitted the issues can jury readily grasp cial definition. The prescribed 37.071, V.A.C.C.P., in Art. logical mitigating relevance of evidence without explanation of their terms. there is probabili- to the issue of whether

Appellant correctly right claims a to con- ty of future criminal acts violence. No sideration mitigating circumstances charge required. ground additional The the jury deciding whether impose or not to error overruled. penalty death and he argues that the judgment The is affirmed. charge he explanatory requested is neces- sary to protect right. disagree We ROBERTS, dissenting. Judge, with this conclusion. Supreme Court has affirmed that under capital the Texas judgment I dissent. The should be re- sentencing “the jury may statute: be asked versed because concealment incrimi- to consider mitigating whatever evidence of nating recording denied his bring circumstances the defense can before constitutionally protected right to effective Texas, 262, 273, it.” Jurek v. 428 U.S. 96 assistance of counsel. 2950, 2957, S.Ct. (1976). 49 L.Ed.2d 929 Court’s of disclosure in analysis “What is jury essential is that have of Brady Maryland wholly inap- terms v. is possible before it all relevant information suggests, As propriate. the Court material- about the individual defendant whose fate ity process due in terms refers to the dis- it must determine. clearly Texas law as- exculpatory of in covery matters nature. sures that all such evidence will be ad- V.A.C.C.P., 39.14, Materiality under Article 276, duced.” 428 at 96 at U.S. S.Ct. 2958. however, has so been nowhere defined. It invalidating While an Ohio penalty death abundantly should be from even clear statute for permit adequate its failure to reading 39.14 cursory of Article that factors, mitigating consideration of the Su- Legislature such intended no restrictive preme favorably Court contrasted Tex- definition and that Article 39.14 was not as law petitioner’s which: “survived the to Brady meant be a mere codification of v. Eighth and Fourteenth Amendment attack Maryland. Materiality context of because three Justices concluded that 39.14 accorded com- Article should be its Texas Court of Criminal Appeals had meaning. monly legal understood As said broadly interpreted question— the second States, U.S.App. in v. United 97 Weinstock despite per- its to facial narrowness—so as 699, 365, 367, (D.C.Cir. 231 701 D.C. F.2d mit the sentencer to ‘whatever consider 1956), means be ‘material’ to have “[T]o mitigating circumstances’ the defendant weight: e., reasonably probative likely i. to might Ohio, be able show.” to Lockett making the tribunal in a determi- influence 98 U.S. S.Ct. required Accordingly, nation to be made.” (1978),citing L.Ed.2d 973 to Jurek by inapposite. cited are the cases Court at S.W.2d 939-40. chosen, enacting Legislature has The Appellant present entitled to evi- 39.14, range a broader to authorize Article mitigating dence of any circumstances and discovery process of than the minimum due evidence, present including did a broad such requirements Brady Maryland. of personal family discussion of back- his ground. question peremptorily appel- then is whether the The Court dismisses language special complex of issue is right so lant’s claim that his effective as- Moreover, is the record clear that infringed upon, say- sistance of counsel was ing discovery erroneously permit- that “. of the State’s trial court believed prior permit so as more discovery evidence to trial even ting of was not bargaining compo- plea effective is not a Accordingly, his discretion. within right nent constitutional effective authority holding that Court’s citation to assistance of counsel.” wrong reason discretion exercised for thereon, judgment not based will vitiate a do we suggest I should elevate long so reached is within the as the decision plea bargaining to the status of a constitu- permissible generally, of bounds discretion view, tionally right. of protected am the application has no in this case. anoma- nonetheless, the Sixth Amendment ly suggesting of that a trial court exercised mandates that counsel not be un- defense thought discretion when he the exercise of duly hampered obliga- of exercise his power within his should discretion was not to effectively represent tion his client. This apparent. aspect is so no matter what criminal is prosecution the immediate focus of coun- authority strongly The Court on the relies his Accordingly, sel’s advice to client. of cases which deal with failure of the where, here, proper- as information which is Brady existence of ma- State reveal the compass ly discovery within the is denied heretofore, I have stated terial. As defense counsel because an affirmative application Brady has no to dis- standard part act misconduct on the V.A.C.C.P., covery under Article 39.14. crippled the defense function is to the ex- important is is the case What more tent the information concealed has a bear- presents failure to bar no mere disclose. given. ing might on the advice counsel have misrepre- a deliberate The record reveals To have declare that counsel should availa- prosecution. sentation him, client, to his ble a basis for advice Where the record reveals affirmative legally all information to which he is enti- part prosecution, misconduct on the theory tled to announce no new law. rul- compounded by trial court an erroneous Association, As Bar stated American showing we ing, require should Relating the Defense Func- Standards great harm to find reversible error. Partic- tion, 1971), (Approved Draft “The rela- so we ularly should this be where review investigation by the tionship of effective case, capital quali- of a the record which is lawyer competent representation at trial noncapital tatively from a case. different patent, adequate investiga- without Gregg Georgia, 428 U.S. 96 S.Ct. position he a tion to make best (1976). We are not L.Ed.2d use of such mechanisms as cross-examina- failure to disclose here faced with a mere impeachment or witnesses tion adverse simply we Neither are Brady material. trial effec- plea conduct discussions un- to make disclosure faced with failure Quite tively.” (emphasis clearly, supplied). we are confronted der Art. 39.14. What prosecutorial behavior of which we of- The State is misrepresentation. with an in- speak represents here unwarranted ex- a life sentence in fered recommend discharge of defense terference with plea guilty. It change appellant’s for duty investigate. counsel’s strength affirmatively misrepresented the say It is no that the trial court answer result, appellant’s counsel As a of its case. have, of his discretion could in the exercise their client when advised were misled 39.14, discovery, under Article denied even a life or plea, represented his had he been aware of the existence of made death decision. recording. discretion is Judicial which can was denied not a mere intellectual exercise I would hold that hypothetical to a of counsel by right be invoked advertence to effective assistance judg- was led to would, state of If the trial court accordingly, facts. reverse was, tape recording believe, as he trial. the cause for new ment and remand existed, said to have then he cannot PHILLIPS, J., joins in this dissent. discovery. to its exercised discretion as

ODOM, Judge, dissenting. join

I the conclusion that this conviction underlying

must be reversed for the factual Judge relied

events Roberts in his I only

dissent. differ from his conclusion I would hold support those facts prosecutorial misconduct,

finding instead

of ineffective assistance of counsel.

root cause in this miscarriage case

was not part ap- ineffectiveness on the counsel;

pellant’s misrepresenta- it was the

tion prosecutor. made Cf. Ruth v.

State, 522 S.W.2d 517. No cloud should be appellant’s

cast on placing counsel for re- representations

liance on the of another

professional. This conviction should be re- prosecutorial

versed misconduct. dis-

sent its affirmance.

CLINTON, J., joins opinion. ENGLISH, Appellant,

Sammie Norman Texas, Appellee.

The STATE of

No. 62778. Texas,

Court of Criminal Appeals of

En Banc.

Jan. 1980.

Rehearing Denied 1980. Feb.

Case Details

Case Name: Quinones v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 9, 1980

Citation: 592 S.W.2d 933

Docket Number: 62117

Court Abbreviation: Tex. Crim. App.