Robert Zani appeals his 1981 murder conviction and ninety-nine year sentence. He was convicted of the 1967 murder of George Vizard, a convenience store clerk. Zani raises numerous grounds of error, including the sufficiency of the evidence and the admissibility of evidence obtained through hypnosis. We disagree with Zani on all grounds and affirm the judgment.
The trial court granted the State’s challenge for cause of two veniremen. During voir dire one venireman stated that in a circumstantial evidence case he would not and could not separate the guilt-innocence phase from the punishment phase and that the defendant’s guilt or innocence would depend, to a certain extent, on the punishment available. A venireman is subject to challenge for cause by the State when he has a bias or prejudice against any phase of the law on which the State is entitled to rely for conviction or punishment.
Weaver v. State,
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Zani claims a second venireman was not absolutely disqualified. During voir dire this venireman indicated she would not consider evidence obtained through the use of hypnosis because she believed hypnosis in general was inherently untrustworthy and of poor credibility. Tex.Code Crim.Proc.Ann. art. 35.16(a)(9) (Vernon Supp.1984) provides that either party may challenge a venireman for cause if he has a bias or prejudice for or against the defendant. An inability to be fair and impartial to the State is an expression of bias for the defendant.
Ransom v. State,
Zani contends he was denied due process because the trial court refused to conduct a full pretrial evidentiary hearing on the admissibility of Jerry Magonye, Jr.’s post-hypnotic testimony. At a hearing on Zani’s motion to suppress, the trial court heard the State’s evidence which included testimony from the expert who observed the hypnotic session, the hypnotist who conducted it, Jerry Magonye, Jr., and a recording of the session. The court refused to suppress the post-hypnotic testimony and refused to permit Zani to present his expert witness to question the accuracy of hypnotic testimony in general. The court need not hold an evidentiary hearing, but may determine the merits of a motion to suppress evidence on the motion itself, opposing affidavits, or oral testimony.
Bosley v. State,
Zani asserts that he was denied discovery of a written statement and tape recording of Robert Riggs, as well as other evidence material, relevant, and favorable to him. A defendant has no constitutional right to inspect the State’s entire file without specifically showing why it is exculpatory,
Rigsby v. State,
Zani complains his federal and state constitutional rights were violated because the trial court refused to permit him to represent himself at trial. Zani originally requested and was represented by appointed counsel, but represented himself at a venue hearing. During that hearing the trial court removed Zani from this role and ordered appointed counsel to resume full representation. A defendant has the constitutional right of self-representation;
Faretta v. California,
The trial court denied Zani’s motion for the appointment of a fingerprint expert and refused to hear testimony in support of the motion. At the time the motion was filed Zani had not incurred expenses for a fingerprint expert’s assistance. Tex.Code Crim.Proc.Ann. art. 26.05 (Vernon Supp.1984) entitles counsel to reimbursement of investigation expenses only after they are incurred, and even then reimbursement is discretionary with the court. Refusal to pay expenses before they are incurred is not an abuse of discretion.
Wallace v. State,
Zani argues that the evidence is insufficient to link him to the commission of the offense. In a circumstantial evidence case such as this, we review all of the evidence in the light most favorable to the jury verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Whether every reasonable hypothesis, other than the defendant’s guilt, has been excluded is one criteria which may be applied. Each fact need not point directly and independently to the guilt of the accused: the cumulative effect of all of the incriminating facts may be sufficient to support the evidence.
Carlsen v. State,
The evidence produced at trial includes the following. George Vizard was shot Sunday morning, July 23, 1967, while working as an attendant at a convenience store in Austin, Texas. Vizard’s store manager saw him shortly before 7:00 A.M., July 23. At the store that morning, someone other than Vizard waited on some customers, and other customers left on finding no one on duty. At approximately 8:00 A.M. a customer discovered Vizard’s body.
Zani lived in Austin at the time of Vi-zard’s death. He worked at the store until five to six weeks before the murder and knew the floor safe combination, routine of the store, and amount of cash generally available on Sunday mornings. Prior to the murder Zani purchased a handgun which the State’s ballistics expert witness believed could have been the murder weapon. The handgun’s caliber and general barrel configurations matched those of the murder weapon. Additionally, these matching general barrel configurations were relatively rare and new in handguns used and manufactured in 1967. The ballistics expert could not positively state that the handgun was the murder weapon because of the leaded condition of its barrel.
Shortly after the murder Jerry Magonye, Jr. and Jerry Magonye, Sr. reported to police officers that on the date of the offense someone other than Vizard waited on them and described a person similar to Zani as the one helping them. In 1980, Mago-nye, Jr. and Magonye, Sr. were placed under hypnosis to refresh their memories of the day of the murder. Magonye, Jr. testified that he saw Zani in the store behind the cash register between 7:00 and 8:00 A.M. on July 23rd. Prior to hypnosis Ma-gonye, Sr. tentatively identified Zani from *150 a picture line-up, and, in a tape recording of his hypnotic session, said he saw a man resembling Zani inside the store waiting on customers. Zani’s fingerprints were on three items, including a loaf of bread, found on the store counter the morning of the murder. Bread was delivered on a daily basis, precluding the possibility the prints were left there the previous night. Further, the store manager cleared the counter at closing time the night before. Although the store safe was not broken into, there is evidence that a theft occurred. Zani knew the combination to the safe and needed money.
In reviewing the evidence in light of the presumption of the defendant’s innocence, we find that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The evidence is sufficient to link Zani to the commission of the offense and to support the conviction.
Zani claims that Jerry Mago-nye, Jr.’s in court identification of him was inadmissible because (1) post-hypnotic testimony is scientifically unreliable, (2) Mago-nye, Jr.’s memory was suggestively induced by hypnosis, (3) the State’s hypnosis experts were unqualified, and (4) the experts’ procedures were insufficient to safeguard the reliability of his refreshed or recalled memory. Post-hypnotic identification testimony by a nondefendant witness is admissible when the totality of the circumstances surrounding the hypnotic session shows that the session was not so impermissibly suggestive to give rise to a substantial likelihood of an unreliable or incorrect identification. Vester v. State, No. 7-81-0206-CR (Tex.App.-Amarillo, Aug. 5, 1983, pet. granted) (not yet reported). Magonye, Jr. originally told police officers that someone other than the deceased waited on him on July 23rd and his description of that person was generally consistent with Zani’s features. Magonye, Jr. saw no photographs of Zani prior to the hypnotic session and was unaware that Zani was a suspect. 1 In the limited scope of post-hypnotic identification testimony by a nondefendant witness, the trial court correctly admitted this evidence: the pretrial identification processes were not so imper-missibly suggestive to give rise to a substantial likelihood of an unreliable or incorrect identification.
Zani’s attorney was not allowed to be present when the State conducted interviews during Magonye, Jr.’s hypnotic session. While a defendant has the right to counsel under the sixth amendment to the United States Constitution when confronted, such as in a line-up or in trial, the extent of this right depends on whether he requires the aid of counsel in coping with legal problems or in meeting his adversary.
United States v. Ash,
Zani moved for a mistrial because he was deprived of the right to cross-examine and confront Jerry Magonye, Sr. when the State played the entire tape recording of Magonye, Sr.’s hypnotic session to the jury. Magonye, Sr. did not testify at trial. Zani made a general objection that hypnosis is inadmissible and renewed objections which dealt only with the admissibility of hypnotic testimony. No objection concerned hearsay or the denial of the right to cross-examine and confront Mago-nye, Sr. While a tape recording of a hypnotic session is normally inadmissible as hearsay, review of the error is waived if no proper objection is made.
Darland v.
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State,
Zani claims the handgun was unlawfully seized by Mexican officials in violation of the fourth and fourteenth amendments to the United States Constitution and the search and seizure laws of Texas, and was therefore inadmissible. Fourth amendment rights are generally inapplicable to an action by a foreign sovereign in its own territory enforcing its own laws, even though American officials are present and cooperating to some degree.
Government of Canal Zone v. Sierra,
A Mexican law enforcement officer testified, over objection, that he previously arrested Zani and confiscated Zani’s handgun from him. He made no reference to any criminal charges. Evidence of other crimes committed by the accused may be admitted when the evidence is both material and relevant to a contested issue. Its probative value must outweigh its inflammatory aspects,
Johnson v. State,
Rodriguez v. State,
Zani contends the trial court admitted hearsay statements into evidence. A police officer testified that Zani and Robert Riggs apparently spoke together prior to the murder, but did not testify about the contents of the conversation. An extra-judicial statement offered for the purpose of showing that a conversation occurred, rather than for the truth of the matter, is not hearsay.
Porter v. State,
Zani complains the prosecution commented on his failure to testify. During final argument Zani’s attorney told the jury that no real reason existed for Zani to testify and told them why the attorneys did not want Zani to testify. In response, the prosecutor argued there were many reasons for Zani to testify. The State’s argu
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ments were invited by the defense. Zani may not argue to the jury why he did not testify and then complain when the State responds.
Meador v. State,
The trial court properly refused Zani’s requested jury instruction limiting the effect of the hypnosis testimony. The court’s charge included standard language that the jury has the sole duty to determine the weight and credibility of the evidence in determining their findings of facts. The refused charge is adequately included in the charge given: the trial court did not err.
See Davis v. State,
Zani complains that because one or two jurors fell asleep during the trial he was denied due process. However, Zani’s attorneys made no objection or brought it to the court’s attention during the trial. Error not properly preserved by objection during trial is waived and not subject to appellate review.
Crocker v. State,
We affirm the trial court’s judgment.
Notes
. These factors distinguish this case from
United States v. Valdez,