Burton, Arthur Berry v. State ( 1999 )

Opinion issued July 22, 1999
In The
(Hand nf Appeala
For The
ifiimt Eiatrirt nf Emma
N O. 01—97-00716-CR
ARTHUR BERRY BURTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 689238
0 P I N I O N
Following two mistrials occasioned by hung juries, a jury in the third trial
convicted appellant, Arthur Berry Burton, of capital murder. The court assessed
punishment at life imprisonment. Appellant raises forty numbered issues on appeal.
We overrule all issues and affirm.
FACTS
In the early morning hours of February 16, 1995, Javier and Hilda De Los
Reyes, who were living adjacent to the Hallmark Air Conditioning Company, heard
three gun shots. Several minutes after hearing the shots, Mrs. De Los Reyes saw a
person “covered with a towel or rag” get out of a large, gold car and get into a second
car, which was parked underneath a light in the Hallmark parking lot. The person
then returned to the first car, and the first car drove away. Mr. De Los Reyes called
the police.
Two officers arrived at the parking lot and found a car with a leg protruding
from the car door. Inside the car, they found the body of the victim, whom they
identified as David Bane. Bane’s gun holster was open and empty.
Jacqueline Kelly Pearson (“Pearson”),l appellant’s former girlfriend with
whom appellant had lived prior to the murder, testified that sometime in mid—
February, 1995, appellant arrived at her house in the middle of the night. According
to Pearson, appellant told her he had shot a security guard. Appellant had a gun,
which he left on Pearson’s dresser.
‘ At the time of the offense Pearson’s last name was Kelly.
2
434-35, the Supreme Court held that the defendant had an adequate alternative where
the same court reporter reported at both the mistrial and the trial at issue; was a good
I
x
friend of all the attorneys; and, at any time upon request, would have read back to
counsel his notes of the mistrial well in advance of the second trial.
We also decline to find that the court erred in denying appellant’s motion for
l
transcripts from the second trial for purposes of appeal. Giveh appellant’s possession
of transcripts of the first trial and transcripts of his own and the co—actor’s testimony
I
f
s
from the second trial, appellant’s apparent access to the attorney and investigator
from the first two trials, counsel’s ability to draw the trial court’s attention to
potential discrepancies between testimony at the first and second trials, counsel’s
ability to request limited portions of the transcript from the second trial, and inclusion
of the complete transcript of the trial that is the basis of this appeal, we conclude that
the transcript of the second trial would have been of limited value.
We Overrule appellant’s issues one through three.
RECUSAL é
In issue four, appellant complains that Judge Hatten should have recused trial
Judge Krocker. In issue 23, appellant complains that Judge Krocker should have V
ruled on his second motion to recuse. ;
ll
By motion dated and filed June 10, 1997, appellant mjoved that the trial judge
recuse herself. Appellant’s counsel stated:
I . . . discovered that this Honorable Court in the persdn of Jan Krocker
refused to accept a plea bargain for a state jail felony agreed upon by the
State and Shannon Babineaux. Thus, this Honorable Court is a witness
as to impeachment of Babineaux as well as not in a position to rule on
admissibility of such impeachment. Therefore, we move to both recuse
Judge Krocker and to continue this case for 30 days.
The court referred the matter to an administrative judge, who assigned Judge
William Hatten to hear the motion. Counsel’s. theory at this hearing appears to have
been the following. Details of Babineaux’s plea agreementi had been introduced at
appellant’s second trial. Subsequent to that trial, Judge Krocll853 S.W.2d 543, 544 (Tex. Crim. App. 1993). This court
reviews a judge’s denial of a motion to recuse under an abuse of discretion standard.
Bruno v. State, 916 S.W.2d 4, 6 (Tex. App—Houston [1st 1:5)ist.] 1995, pet. ref’d).3
Under that standard, even if the lower court gives the wrongireason for its decision,
the appellate court will sustain the decision if the decision is correct on any theory of
law which finds support in the record. Bee v. State, 974 S.W.2d 184, 190 (Tex.
App—San Antonio 1998, no pet.) (discussing standard in context of review of
evidentiary rulings). Regardless of whether the appellate coiirt would have reached
a different result, it should not reverse so long as the trial court's ruling was within
the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380—81
(Tex. Crim. App. 1990) (opinion on reh'g) (discussing standard in context of review
of evidentiary rulings).
3 The State does not contend that the first motion was untimely. See Stafi’ora’
v. State, 948 S.W.2d 921, 925 n.6 (Tex. App.—Texarkana 1997, pet. refd) (ten-day
requirement of rule 18a is not absolute and does not contemplate situation in which
party cannot know basis of the recusal until after motion :for recusal is no longer
timely).
14
A reasonable view of the record supports Judge Hatten’ls decision not to recuse
Judge Krocker. Although Judge Krocker might be the only fwitness regarding why
she took certain actions in Babineaux’s case, appellant does gnot explain, and we do
not see, why Judge Krocker’s motivation would be relevant to Babineaux’s
credibility. Irrelevant evidence is inadmissible. Tex. R. EVIfD. 402.
The fact that Judge Krocker presided in proceedings involving Babineaux
similarly does not warrant recusal. A judge’s involvemeréit in prior proceedings
involving the defendant in and of itself does not justify recusal. Kemp v. State, 846
S.W.2d 289, 306 (Tex. Crim. App. 1992). Judge Krocker’slinvolvement in the co-
actor’s case here certainly does not.
We overrule issue four.
We also agree with the court that appellant’s second lnotion for recusal was
untimely and was the same motion Judge Hatten had previousin overruled. Although
rule 18a requires a hearing on a motion to recuse, such a reqdirement does not apply
unless the recusal motion states valid grounds for recusal. Cf. Texaco, Inc. v.
Pennzoz'l, Ca, 729 S.W.2d 768, 855-56 (Tex. App—Houston [1st Dist.] 1987, writ
ref’d n.r.e.) (no error to refiise hearing on motion to disqualify retired judge's
certification to sit on any case where such challenge may be made only in a quo
warranto proceeding).
We therefore overrule appellant’s issue 23.
15
COURT’S EXPLANATION OF F ELON Y MURDER DURING VOIR DIRE
In issue five, appellant contends that the trial court misstated the law when it
explained felony murder to the prospective jurors during 1 voir dire. He further
contends that the purported misstatement deprived him of his peremptory challenges.
The basis of appellant’s complaint lies in the court’s useiof “accidental” in the
following passage:
There is a special law in Texas concerning felony murder which
basically says that if a person intends to commit a certain felony, for
example, robbery, or burglary, whatever it may be, and a death results,
for example, a gun goes off accidentally, it wouldn’t be a murder, a real
homicide, as you normally think of a homicide, becapse there was no
intent to kill someone. But if death resulted because of the action of the
perpetrator of the crime in committing another felony, there are some
exceptions as to that felony, then that would be a criine called felony
murder.
The penal code provides in relevant part that a person commits the offense
commonly referred to as “felony murder” if that person “Commits or attempts to
commit a felony . . . and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt, he commits or
attempts to commit an act clearly dangerous to human life that causes the death of an
individual.” TEX. PENAL CODE ANN. § 19.02 (Vernon 1994).
The court’s hypothetical example involved (1) a persdm committing a felony,
(2) using a firearm, (3) committing an action during the felony that resulted in death.
Although the court’s hypothetical referred to an “accidental”;i discharge of a gun, that
16
statement was intended as an exception to the concept being explained. The
hypothetical clearly tied the perpetrator’s action in committing a felony to the
resultant death. Use of a gun during a robbery in a manner that resulted in death
would constitute a clearly dangerous act. Ross v. State, 861 lS.W.2d 870, 876 (Tex.
Crim. App. 1993) (opinion on reh’ g) (stating that, if mannei in which weapon was
used amounted to an act clearly dangerous to human life, resulting homicide
constitutes the offense of felony-murder as defined by section l9.02(a)(3) of the
Texas Penal Code). The court’s hypothetical was a correct statement of the law.
We overrule issue five.
WITNESS’S PARTIAL EXEMPTION FROM RULE 613
In issue six, appellant contends that the trial court violated rule 613 of the
former Texas Rules of Criminal Evidence when it permitted the victim’s father, Clyde
Bane, to remain in the court room. In issue seven, appellan:t contends that the trial
court further violated article 38.05 of the Texas Code of Criininal Procedure when,
in the presence of the jury, the court told Bane that the rule not apply to him.
On June 11, 1997, before the jurors entered and the gwitnesses were sworn,
appellant objected to the State’s request that Bane be permitted to remain in the
courtroom during the trial. Appellant objected to Bane’s preSence in the courtroom,
not to Bane’s testimony. Appellant has not established harm from Bane’s presence
in the courtroom. Even if the court erred in permitting Bane to remain, that factor
17
alone would not constitute reversible error. Choice v. State, 883 S.W.2d 325, 327
(Tex. App—Tyler 1994, no pet.) (stating that violation of sequestration rule by a
witness is not itself reversible error, but becomes reversible error only when the
questioned testimony is admitted and complaining party harmed).
The only purpose of Bane’s testimony was to identify a photograph of the
victim. None of the witnesses Bane heard would have influenced that testimony. See
Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (purpose of sequestration
rule is to prevent one witness from influencing another). Any violation of the
sequestration rule did not affect appellant’s substantial rights. See TEX. R. APP. P.
44.2(b).
We overrule issue six.
We also conclude that the court’s one sentence explanation singling out Bane
and stating that he could stay in the courtroom was not a comment on the weight of
the evidence in violation of article 38.05 of the Code of Criminal Procedure.
Appellant does not explain, and we do not see, how the coqu comment constituted
a comment on the weight of the evidence or was a remark calculated to convey the
court’s opinion of the case to the jury.
We overrule issue seven.
18
EVIDENTIARY ISSUES
In issues eight through 22 and 24 through 32, appellant addresses the trial
court’s admission and exclusion of evidence. We review these issues under the
standard applied to discretionary decisions. Allridge v. State, 850 S.W.2d 471, 492
(Tex. Crim. App. 1991) (trial court has broad discretion in determining admissibility
of evidence, and appellate court will not reverse unless clear abuse of discretion is
shown).
Vehicle Identification.
In issue eight appellant obj ects that testimony by Hilda De Los Reyes
identifying photographs of a vehicle was inadmissible hearsay. “‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801(d).
“A ‘statement’ is (1) an oral or written verbal expression or (2) nonverbal conduct of
a person, if it is intended by the person as a substitute for verbal expression.” TEX.
R. EVID. 801(a).4
The State asked De Los Reyes about her perceptions of the similarities between
objects (the vehicle and the photos), not about what she told someone about her
perceptions. The testimony was not hearsay.
4 Rules 801(a) and (d) of the Texas Rules of Evidence are substantively
identical to former rules 801(a) and (d) of the Texas Rules of Criminal Evidence.
19
We overrule issue eight.
Prior Inconsistent Statements.
Appellant raises several issues relating to the State’s introduction of prior _
inconsistent statements for impeachment purposes. These issues concern claims of
inadequate foundation and claims of improper rulings related to limiting instructions.
Claims of inadequate foundation.
In issues 10 and 31, respectively, appellant complains that the State did not
establish the proper time, place, and person predicate for introducing the prior
inconsistent statements of David Johnson and Tallas Harrison. We disagree.
Appellant contends that the State did not inform Johnson of the person to
whom the prior statement was made when the State sought to impeach Johnson with
his testimony at an earlier hearing on April 15, 1996. The April 15th “hearing”
referred to the appellant’s first trial. Thus, the question implicitly informed the
witness that the statement was made to the judge, the jury, and the parties at that
hearing. The form of the question avoided the risk of informing the present jury that
appellant had been tried previously.
The purpose of the foundation requirements for the impeachment rule is to put
the witness on notice as to which statements are going to be used to impeach his or
her credibility. Cf. Joseph v. State, 960 S.W.2d 363, 366 (Tex. App—Houston [lst
20
Appellant’s friend, Curtis Hill, testified that at some point in February 1995,
appellant told Hill that he had shot somebody. Appellant also told Hill that he was
with “Shannon” at the time of the shooting.2 The day after appellant confessed to
Hill, they were watching a neWs program about the shooting, and appellant told Hill,
“[T]hat’s what I was talking about.”
Shannon Babineaux testified that he was with appellant the night of the
shooting. He heard gunshots while he was waiting in the car by Hallmark. After
appellant returned to where Babineaux was waiting, appellant said he had had to
“bust” the victim. As they were driving away, appellant began talking about a pistol
and told Babineaux he had to retrieve the gun from the security guard. Babineaux
grabbed a towel from appellant’s car to conceal his identity, ran to the victim’s car,
and took the gun.
David Johnson received a gun from Pearson. Johnson gave the gun to his
brother Timmie Lane, who gave it to the police. The bullets taken from the victim’s
body matched bullets fired from the gun Lane had given the police.
The defendant denied committing the offense, saying he was at a party in New
Waverly the night of February 15 and the early morning hours of February 16.
Kanessah Hall and Tallas Harrison testified in support of the alibi, but the State
2 Shannon Babineaux used a variety of names.
3
Dist.] 1998, pet. ref’d ) (referring to time and place foundation requirements). The
‘ question fillfilled that purpose.
We overrule issue 10.
In issue 31, appellant contends that the State never asked Harrison about when
Harrison had made a prior statement about the date of a party (the event appellant was
relying on for his alibi). Appellant also contends that the State’s question was
improper because the State did not ask Harrison whether he previously said he
“remembered” the date of the party, but instead asked whether Harrison had
previously said he was “sure” of the date.
At one point in the State’s cross-examination of Harrison, the prosecutor
referred to a discussion between Harrison, Bob Reece (the investigator), and herself.
After the court sustained appellant’s objection that the State had not confronted
Harrison with the time, place, and person to whom Harrison made the statement, the
prosecutor adequately confronted Harrison with the time of the statement (about two
weeks ago during the only occasion on which she had met with Harrison), with the
place of the statement (the Harris County Jail), and with the persons to whom it was
made (the prosecutor and Reece). The prosecutor provided Harrison with an
opportunity to explain or deny the statement.
We overrule issue 31.
21
Claims relating to limiting instructions.
Issues nine, ll, 16, 17, 30, and 32 concern the court’s denial of appellant’s
requests for instructions limiting the use of impeachment evidence. When evidence
has limited admissibility and a party requests an instruction to that effect, the court
should give the limiting instruction at the time the evidence is admitted. Rankin v.
State, 974 S.W.2d 707, 711—13 (Tex. Crim. App. 1996) (0p. on reh’g).
In issue nine, appellant claims that the trial incorrectly denied his request-for
a limiting instruction after appellant’s impeachment of State’s witness Hilda De Los
Reyes. The court denied the request without explanation.
We do not decide whether the testimony appellant elicited from De Los Reyes
on cross—examination was, in fact, inconsistent with her prior direct testimony. Even
if the testimony was inconsistent, appellant was not entitled to a limiting instruction.
Netherjy v. State, 692 S.W.2d 686, 705 (Tex. Crim. App. 1985) (reasoning that rule
requiring limiting instruction when State impeaches own witnesses does not apply
when defendant impeaches State’s witness); Jones v. State, 810 S.W.2d 824, 828
(Tex. App—Houston [14th Dist] 1991, no pet.) (same).
We overrule issue nine.
In issue 11, appellant complains that the court denied his request for an
instruction limiting David Lee Johnson’s prior statement indicating when appellant’s
girlfriend, Jacqueline Pearson (“Jasmine”), had given Johnson the gun used in the
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shooting. At trial, Johnson testified that Jacqueline had given him the gun three days
after Johnson had returned home from a stay in the hospital. In the prior statement,
Johnson had stated that he had not seen Pearson for about a week after returning
home from the hospital. It appears that the purpose of Johnson’s testimony about the
gun was primarily to show how it got from Pearson (who had received it from
appellant) to Timmie Lane, Johnson’s brother, from whom the police had retrieved
the gun. Whether Johnson received the gun three days or a week after his return had
no bearing on appellant’s guilt or innocence.
The jury could have used the prior statement only for impeachment. No
limiting instruction was required. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim.
App. 1987).
We overrule issue 1 1.
In issues 16 and 17, appellant contends that the court should have given
instructions limiting the use of Curtis Hill’s statements about how long Hill had
appellant’s car before Hill allowed the car to be towed. By appellant’s own-
description, he elicited or introduced all of the statements for which he contends there
should have been limiting instructions. Under these circumstances, we conclude that
appellant was not entitled to a limiting instruction. Netherjy, 692 S.W.2d at 705;
Jones, 801 S.W.2d at 828.
We overrule issues 16 and 17.
23
In issues 30 and 32, appellant contends that the trial court improperly denied
his requests for an instruction limiting the use of Harrison’s prior statements to
Investigator Reece concerning the date of the party appellant was relying on for an
alibi. At trial, Harrison testified that he had been with appellant in Willis and then
at a party in New Waverly the evening and night of February 15 (the night of the
murder). According to Harrison, he and appellant left the party around 3 :00 or 4:00
am. and then went back to Willis. Harrison’s trial testimony corroborated appellant’s
alibi. The State’s rebuttal witness, Gloria Jones, however, placed appellant in New
Waverly on the evening of February 16.
As discussed above, the State cross—examined Harrison regarding a prior
statement to the prosecutor and Investigator Reece, in which Harrison said he
remembered that he was with appellant on February 14, because it was Valentine’s
Day. In rebuttal the State called Reece, and Reece testified that Harrison had said the
party was on February 14.
Even were we to conclude that the court erred in not giving a contemporaneous
instruction, that error was harmless. Unless the jury concluded there had been more
than one party, the jury could not have believed both Jones’s testimony and
Harrison’s prior statement. Given the facts surrounding Jones’s ability to pinpoint
the date, it is more likely that the jury believed Jones. Finally, the jury heard
24
testimony about appellant’s incriminating statements to Pearson, Babineaux, and
Hall. Absence of a contemporaneous limiting instruction did not harm appellant.
We overrule issues 30 and 32.
Purported Comment on Accused’s Silence.
Issue 12 involves the trial court’s handling of appellant’s objection to Officer
Brown’s testimony that he “[a]ttempted an interview with Mr. Burton.” Appellant
contends that this testimony constituted an impermissible reference to appellant’s
invocation of his right to silence. Although his argument does not directly address
the matter, appellant frames the issue in terms of the trial court’s refusal to rule on
appellant’s objection until after the prosecutor could continue questioning Brown.
The State urges that, read in context, Brown’s original comment “could only
be reasonably interpreted to mean that he attempted to interview appellant to obtain
consent to search his car, and that appellant voluntarily agreed.” We agree. Hicks v.
State, 837 S.W.2d 686, 692 (Tex. App—Houston [lst Dist] 1992, no pet.)
We overrule issue 12.
Attempted Impeachment with Misdemeanors
In issues 13 and 15, appellant contends that the court abused its discretion in
not permitting him to impeach two of the State’s witnesses with evidence of their
prior misdemeanor convictions. Issue 13 concerns the attempted impeachment of
David Lee Johnson; issue 15, the attempted impeachment of Curtis Hill.
25
On its face, rule 609(a) is limited to impeachment with felonies or crimes
involving moral turpitude. There is, however, an exception to rule 609(a), which
“applies when a witness makes statements concerning his past conduct that suggest
he has never been arrested, charged, or convicted of any offense.” Delk v. State, 855
‘ S.W.2d 700, 704 (Tex. Crim. App. 1993). Appellate courts have narrowly restricted
this exception to rule 609(a) to situations where a witness makes an unambiguous
claim of never having been arrested or convicted before. See Delk, 855 S.W.2d at
704-705; Lewis v. State, 933 S.W.2d 172, 177—79 (Tex. App—Corpus Christi 1996,
pet. refd).
The testimony appellant cites to support his attempted impeachment of Johnson
and Hill does not meet this rigid standard. The cited passages from Johnson’s
testimony concern only Johnson’s temporary possession of the gun used in the instant
offense and Johnson’s statements during the course of the investigation of the instant
offense. They do not refer to “past” behavior. They did not imply that Johnson had
never committed a crime.
The cited passages from Hill’s testimony concern only Hill’s reason for not
asking appellant any questions, Hill’s reason for not contacting the police, and Hill’s
cooperation with the police when they questioned Hill about the instant offense.
They do not refer to “past” behavior. They did not imply that Hill had never
committed a crime.
26
The cited passages did not open the door to impeachment with misdemeanor
convictions. Lewis, 933 S.W.2d at 178-79 (defendant’s declarations did not open the
door to impeachment with misdemeanor convictions when declarations neither
invoked the past nor implied that appellant never committed a crime). The trial court
did not abuse its discretion in excluding the evidence.
We overrule issues 13 and 15.
Refreshment of Recollection
In issues 14 and 20, appellant contends that the trial court committed reversible
error by permitting two State witnesses, Curtis Hill and Shannon Babineaux, to read
their out-of—court statements to the jury. The record does not support appellant’s
contention.
After Hill testified that he could not remember appellant’s telling Hill when the
shooting had occurred, the prosecutor showed Hill his prior written statement and
asked him whether he recognized it. Hill recognized the statement and read it to
himself.
Hill did not read his statement out loud. The State did not offer Hill’s
statement into evidence. The State’s use of the statement to permit Hill to refresh his
present recollection of what he had previously told the police was proper. Wood v.
State, 511 SW. 2d 37, 43 (Tex. Crim. App. 1974) (describing permissible use of
memorandum for purposes of refreshing recollection).
27
We overrule issue 14.
Appellant does not cite this Court to any portion of the reporter’s record where
the prosecutor asked Babineaux to read his out-of-court written statements, either to
himself or to the jury. He cites only passages in which Babineaux testified that the
first time the officer did not ask him about “no gun or nothing,” and that, in the
second statement, Babineaux “[s]aid something about the gun.”
Nevertheless, appellant contends that Babineaux’s responses to the
prosecutor’s questions about differences between his two out of—court-statements
constituted a reading of his statements. Appellant cites no law and develops no
argument in support of this contention. See TEX. R. APP. P. 38.1(h) (arguments must
be supported by citations to authority); Mosley v. State, 983 S.W.2d 249, 256 (Tex.
Crim. App. 1998) (contention rejected as inadequately briefed where appellant made
no argument in support).
We overrule issue 20.
Hill’s “Ostentatious Act”
In issue 18, appellant contends that the trial court committed reversible error
when it denied his request to instruct the jury to disregard Curtis Hill’s “ostentatious
act.” The “act” apparently occurred when appellant was cross-examining Hill about
the dates he “hung out” with Babineaux, and appellant objected to Hill’s answer as
28
being non-responsive. Appellant then objected to “the witness’s face,” and the court
admonished Hill not to make any facial expression.
Appellant continued with his objection to the non—responsiveness of Hill’s
answer; and, in the course of that objection, objected to the court’s comments in the
course of ruling on his objection. Appellant did not request an instruction to
disregard until immediately after the lunch break, which had followed the court’s
ruling on appellant’s objections.
The only descriptions of the “ostentatious act” are those provided by
appellant’s counsel, when he stated, “[m]y specific objection is to the witness’ [sic]
ostentatious sign, and the act —— there was a physical act that he made when I asked
the very last question . . . .” and when counsel reiterated, “the act — this ostentatious
n5
sign, act, and shaking of his head to the question. The only case appellant provides
in support of his argument, McFarland v. State, 834 S.W.2d 481 (Tex. App—Corpus
Christi 1992, no pet.), concerns a prosecutor’s specifically described overt actions,
for which the court gave an instruction to disregard.6 It is inapposite.
We overrule issue 18.
5 On appeal, appellant represents the description as follows: “Hill’s
ostentatious sig[hi]n[g], act, and shaking of his head.”
6 The additional cases appellant cited in his original brief also concerned only
a prosecutor’s inappropriate actions.
29
Evidence Hill Never a Suspect
Appellant frames issue 19 in terms of whether the trial court erred in overruling
appellant’s rule 403 objection to Officer Swaim’s testimony that Curtis Hill was never
a suSpect in the case. Appellant, however, does not develop his rule 403 argument
in this court. See Mosley, 983 S.W.2d at 256 (contention rejected as inadequately
briefed where appellant made no argument in support); see also Matthews, 892
S.W.2d at 209 (inadequate argument where contention not explained).
Instead, appellant argues that Swaim’s testimony constituted a comment on
Hill’s credibility. If appellant is indeed making'the latter argument, he has not
preserved it, because rule 403 does not support exclusion of evidence on the grounds
of improper bolstering. Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)
(emphasizing that rule 403 does not mandate exclusion of relevant evidence simply
because it corroborates testimony of an earlier witness).
We overrule issue 19.
Babineaux’s Charges and Convictions
In issue 21, appellant contends that the court erred in overruling his objection
to Babineaux’s testimony about the “facts of his prior conviction(s).” Appellant
directs this Court to cases holding that the State may not inquire into the facts of an
accused’s prior convictions. The State, however, did not inquire into the underlying
3O
impeached Harrison with his prior statement that he was sure the party was February
14. The State’s rebuttal witness, Gloria Jones testified that she saw appellant at a
party in New Waverly on the evening of February 16, the night after the shooting.
APPLICATION OF RULE 44.2
OF THE TEXAS RULE OF APPELLATE PROCEDURE
Preliminarily, appellant states that he “expects” this Court to apply rule
81(b)(2) of the Former Texas Rules of Appellate Procedure and that to do otherwise
would penalize appellant by holding his counsel “accountable for [counsel’s] trial-
time failure to foresee that Rule 44.2 would be promulgated and Rule 81(b){2) would
be repealed.” He also contends that rule 44.2(b), which applies to non-constitutional
error, “is unconstitutionally retroactive, as well as violates our equal rights and due
course of law, without [sic] violating our separation of powers.”
In Fowler v. State, No. 0075-98, slip op. at 5 (Tex. Crim. App., Mar. 31, 1999),
the Court of Criminal Appeals held that Fowler did not suffer injustice as a result of
application of rule 44.2(b), the rule in effect at the time of the disposition of Fowler’s
appeal, even though the Tenth Court of Appeals conceded that it would have reversed
had it applied former rule 81(b)(2). The Court of Criminal Appeals observed,
“Appellant . . . received that to which he was entitled. Appellant was entitled to
nothing more than an appellate review of his conviction.” Fowler, slip op. at 4. The
facts of the conviction, but only into the charges Babineaux had faced and the
disposition of those charges.
We overrule issue 21.
Attempted Cross-examination about Babineaux’s Not Having Testified at
Appellant’s First Trial
In issue 22, appellant contends that the trial court erred in not permitting
appellant to cross—examine Babineaux about his not having testified in appellant’s
first trial. The sole case appellant cites in support of his contention is Sanders v.
State, 52 Tex. Crim. 156, 105 SW. 803 (1907), which concerned impeachment of a
defendant by reference to his not having testified at a former trial. Appellant does not
develop an argument from this case, but presents this Court only with a question. See
Mosley, 983 S.W.2d at 256 (contention rejected as inadequately briefed where
appellant made no argument in support); see also Matthews, 892 S.W.2d at 209
(inadequate argument where contention not explained).
The State responds by pointing to Judge Onion’s subsequent description of
Sanders as “stand[ing] alone.” Franklin v. State, 606 S.W.2d 818, 853 n.3 (Tex.
Crim. App. 1979) (0p. on reh’ g) (Onion, J ., concurring). But see Raflel v. United
States, 271 US. 494, 496, 46 S. Ct. 566, 567 (1926) (citing Sanders and holding that
it was not error to require defendant, who offered self as witness at second trial, to
disclose that he had not testified in own behalf at first trial).
31
Regardless of the admissibility of Babineaux’s prior silence, we cannot
conclude that its relevance or probative value was such as to warrant reversal,
particularly in light of the evidence the jury heard regarding the disposition of
Babineaux’s charges. Appellant explained to the trial court that “[w]hat he wanted
to get into is [Babineaux] didn’t testify because there was not an offer made to him
at the first proceeding.” Although the court precluded questions about Babineaux’s
silence, the court permitted appellant to “go into the fact that . . . whatever happened,
3)
you can go into that concerning the punishment on crimes pending. Appellant
thoroughly questioned Babineaux about the disposition of the charges deriving from
his involvement in the instant case and other cases.
We overrule issue 22.
Jacqueline Pearson’s Medical Records
In issues 24, 25, and 26, appellant contends that the trial court erred in
excluding portions of defense exhibits that contained Jacqueline Pearson’s medical
records. The document that is the subject of issue 24 is a single page “screening
form” dated February 9, 1995, five days before the murder.
To the extent that appellant discusses the screening form, he argues only that
the form was relevant. He does not address the State’s hearsay objection. He does
not explain why both the form itself and the contents of the screening form were not
hearsay. He does not point to any exceptions that would render both the form and its
32
contents admissible. Kirchner v. State, 739 S.W.2d 85, 87 (Tex. App—San Antonio
1987, no pet.) (stating that, when ruling of trial court concerned whether evidence
was admissible under hearsay exception, it was incumbent on defendant to provide
appellate court with argument and authority supporting same allegation of error).
We overrule issue 24.
The document that is the subject of issue 25 consists of four pages of “Progress
Notes,” covering May 8, June 3, and June 18, 1997, a period immediately prior to,
and during, appellant’s trial. The document was part of Defendant’s Exhibit 3, which
contained medical records from May and June, 1997. The State objected to Exhibit
3, in part on the ground that portions of the exhibit were not relevant and in part on
the ground that portions of the exhibit were highly prejudicial.
The court sustained the State’s objection in part, but did admit the bulk of
Exhibit 3 with redactions. The redacted portions concerned details of Pearson’s
suicide attempt and her statement that she had unprotected sex in order to contract
AIDS.
Issues of relevance are left to the trial court's discretion, and we will not reverse
absent an abuse of that discretion. Ford v. State, 919 S.W.2d 107, 115 (Tex. Crim.
App. 1996). Similarly, we review a trial court’s balancing of probative value and
prejudice for abuse of discretion, looking for whether the trial court’s determination
33
was a reasonable view of all the relevant facts. Santellan v. State, 939 S.W.2d 155,
169 (Tex. Crim. App. 1997). We will not reverse unless the trial court’s ruling was
outside the zone of reasonable disagreement. Ford, 919 S.W.2d at 115; Montgomery,
810 S.W.2d at 391.
We cannot say that the trial court abused its discretion in ruling on the
admissibility of the medical records. In considering the documents that are the
subject of issue 25, the trial court reviewed each of the portions to which the State
objected and listened to the arguments of both parties. The court considered the
relevance of each portion and, where necessary, weighed the probative value of the
evidence against its potential for prejudice. The trial court’s ruling was not outside
the zone of reasonable disagreement.
We overrule issue 25.
The record that is the subj ect of issue 26 dealt with a period commencing two
weeks after Pearson had completed her statements to the police and ending long
before appellant’s trials. Appellant contends on appeal that the document was
“essential for the jury to evaluate [Pearson’s] credibility, especially regarding her
cooperation in the investigation of this cause.” However, when the trial court asked
appellant for his response to the State’s argument that the record was not relevant,
appellant had no response. The court sustained the State’s objection.
34
“In order to succeed, appellant must show that the Trial Court clearly abused
its discretion in excluding the testimony.” Breeding v. State, 809 S.W.2d 661, 663
(Tex. App—Amarillo 1991, pet. ref” d) (citing Johnson v. State, 698 S.W.2d 154, 160
(Tex. Crim. App. 1985)). He has not done so here.
We overrule issue 26.
Excluded Testimony from Medical Expert
In issue 27, appellant contends that the trial court erred when it sustained the
State’s objection to a question posed to his medical expert. The question was whether
certain disorders, “linked together, can affect one’s psychological ability to perceive
the here and now?” The State objected on the ground of relevance. The medical
record about which appellant was questioning the expert, was the medical record from
June 1997, the time of the trial, not the time of the perceptions about which Pearson
was testifying. The trial court’s ruling was not outside the zone of reasonable
disagreement. Ford, 919 S.W.2d at 1 15; Montgomery, 810 S.W.2d at 39.
We overrule issue 27.
Pearson’s Letter
In issue 28, appellant contends that the trial court erred when it sustained the
State’s hearsay objection to a letter ostensibly written by Pearson to appellant. In the
letter, Pearson referred to a paper someone else had shown her and then stated, “All
35
I could see was my baby getting lethal. But I know you didn’t do it.” Appellant
contends that the letter qualified under the hearsay exception for statements against
interest. TEX. R. EVID. 803(24).
The admissibility of an out—of—court statement under the exceptions to the
general rule against hearsay is within the trial court's discretion. Lawton v. State, 913
S.W.2d 542, 5 5 3 (Tex. Crim. App. 1995). “All hearsay exceptions require a showing
oftrustworthiness.” Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex. 1986).
We do not decide whether Pearson’s statement qualified as one against interest,
because we conclude that it was not sufficiently trustworthy to warrant admission.
As part of his offer of proof, appellant provided Pearson’s testimony from appellant’s
second trial, where Pearson testified that she put the statement in the letter because
she “wanted somebody else to believe he didn’t do it. ” When the State asked her who
she had in mind, Pearson replied, “Whoever was reading [appellant’s] mail.” She
testified she loved appellant at the time she wrote the letter. We cannot say the trial
court abused its discretion in sustaining the State’s objection. 1
We overrule issue 28.
36
Jones’s Testimony about her Daughter-in-Law
In issue 29, appellant contends that the trial court erred in overruling his
hearsay objection to Gloria J ones’s testimony about the date .on which her daughter-
in-law had taken an overdose of sleeping pills. The State called Jones to rebut
Harrison’s testimony that appellant had been with him at a party in'New Waverly the
evening of February 15 and into the morning of February 16, 1995.
Jones testified that, on the evening of February 16, 1995, she had seen
appellant at a domino party in New Waverly at the apartment of Jennifer Spelling,
who lived across the hall from Jones. When the State asked Jones whether there was
anything during that week that had caused her to remember this specific date, Jones
replied, “It was the week that my daughter-in-law took all my pills that Sunday -—.”
Appellant objected that the statement was being offered for its truth and constituted
hearsay. Only after a series of questions and answers concerning the date the
daughter-in-law took the pills and the date she had been transferred to Hermann
hospital, did appellant request a voir dire “[t]o establish the level of her personal
knowledge on any of this.” The court then admonished the State to include in its
questions whether Jones was answering from her personal knowledge.7
7 Appellant subsequently established that Jones had not been with her
daughter-in—law when she took the pills or when she was transported to Hermann
Hospital.
3 7
Jones testified that she had visited her daughter-in-law at Hermann Hospital on
February 16, and left for New Waverly around 4:00 or 5:00 p.m. That was the last
time she saw her daughter-in-law. The daughter-in-law died on February 19.
Appellant did not object, nor did he have a valid hearsay objection, to J ones’s
testimony about her last visit to see her daughter-in-law on February 16. Given the
latter testimony, even if the trial court erroneously denied appellant’s objection to
J ones’s testimony about other dates during the week of the- party, the error did not
affect substantial rights. See TEX. R. APP. P. 44.2(b). Cf. King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997) (substantial right is affected when error had
substantial and injurious effect or influence in determining jury’s verdict).
We overrule issue 29.
LIMITING INSTRUCTION IN THE FINAL CHARGE
In issues 33 and 34, appellant contends that the trial court erred when, in its
final charge to the jury, it included an instruction limiting the use of witnesses’
criminal histories to impeachment. The charge, as given, read:
You are further instructed that any evidence that any witness has
been convicted in any case or cases, was admitted [before] you for the
purpose of aiding you, if it does aid you, in passing upon the credibility
of the witness and the weight to be given his testimony, and you will not
consider the same for any other purpose.
Appellant had requested that the court limit the charge to defense witness
Tallas Harrison. As in the court below, appellant reasons that, because the State did
38
not request a limiting instruction at the time the criminal histories of its witnesses
were introduced, it was not entitled to such an instruction in the charge.
Appellant’s reasoning in issue 33 implicitly derives from case law holding that,
absent objection and a timely request for a limiting instruction, a party may not
complain about the lack of such an instruction on appeal. SUch a holding is not the
equivalent of, and does not necessarily lead to, a conclusion that, absent a request for
a contemporaneous limiting instruction, the trial court errs in including such an
instruction in the charge.
In issue 34, appellant suggests that the limiting instruction constituted an
impermissible comment on the evidence in violation of rule 38.05 of the Texas Code
of Criminal Procedure. Apart from citing rule 38.05 in the caption, appellant cites no
authority in support of this issue and does no more than incorporate his argument
from issue 33. Mosley, 983 S.W.2d at 256 (rejecting contention as inadequately
briefed where appellant made no argument in support); Matthews, 892 S.W.2d at 209
(finding argument inadequate and overruling point of error where contention not
explained). Finally, even if the instruction constituted error, appellant was not
harmed. The criminal histories — as distinguished from Babineaux’s involvement
in the instant offense — did not have any bearing on appellant’s guilt or innocence.
They were relevant only to impeachment of the witness, which more often inured to
appellant’s benefit rather than to the State’s. They had no substantive use.
39
We overrule issues 33 and 34.
DENIAL OF INSTRUCTION ON FELONY MURDER
In issue 35, appellant contends that the trial court erred in denying his request
for a lesser included instruction on felony murder. In Rousseau v. State, 855 S.W.2d
666 (Tex. Crim. App. 1993), the court explained that the appropriate test to determine
whether a defendant is entitled to a charge on a lesser included offense is the
following:
first, the lesser included offense must be included within the proof
necessary to establish the offense charged, and, second, some evidence
must exist in the record that would permit a jury rationally to find that
if the defendant is guilty, he is guilty only of the lesser offense.
Id. at 672-73 (emphasis in original).
Felony murder is a lesser included offense of capital murder. Id. at 673. The
only question in this case is whether there was evidence that would permit the jury
rationally to find that appellant had the intent to rob Bane, but not to cause his death.
Id.
Appellant points to statements that would support the claim that he intended
“I
to rob Bane, for example a phrase that purportedly meant he was trying to hurt
somebody, make some money,”’ and a statement that “‘heneea’ed some money or
something.”’ He also refers to the position of Bane’s body after the shooting. We fail
to see how a jury could find from this evidence a lack of intent to cause death. The
40
court also held that “the Tenth Court’s application of Rule 44.2 did not violate the
Texas Constitution’s prohibition of retroactive laws.” Id. at 8.
Similarly, appellant in the instant case is entitled to nothing more than appellate
review of his conviction. Moreover, unlike the Tenth Court, on those few issues in
this appeal where we find error, we cannot say that we would have reversed had we
applied the former rules.
We overrule appellant’s “unnumbered issue.”
PRIOR MISTRIAL TRANSCRIPTS
In issues one through three, appellant contends that on three occasions, the trial
court erroneously denied his request for transcripts from his second mistrial: twice
prior to trial and once immediately prior to submission of the charge to the jury, when
he sought the transcript for inclusion in his bill of exceptions for purposes of appeal.
Appellant’s first trial ended in a hung jury on April 23, 1996. On May 1, 1996,
he requested a set of transcripts from this trial, and the court granted his request on
May 22, 1996. On September 9, 1996, appellant’s second trial ended. in a hung jury.
Attorney Jim L. Peacock represented appellant in both of these trials.
On January 16, 1997, Attorney Peacock requested the transcripts of six
witnesses from the second trial: Shannon “Bailey,” Arthur Berry Burton, Jacqueline
Pearson, Kanessah Hall, Tiffany Hall, and Curtis Hall. Referring to the court’s
evidence here is far from indicating that there was a struggle and the gun just “went
off.” Cf. Butler v. State, 981 S.W.2d 849, 858 (Tex. App—Houston [1st Dist.] 1998,
pet. filed).
We overrule issue 35.
CLOSING ARGUMENTS
In issues 36 through 39, appellant contends that the trial court erred in its ruling
on objections during his and the State’s closing argument. With regard to those
issues where we agree, we cannot conclude appellant was harmed.
There are four permissible areas for jury argument: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) an answer to the argument
of opposing counsel; or (4) a plea for law enforcement. See Cz'fuerztes v. State, 983
S.W.2d 891, 895 (Tex. App—Houston [1st Dist.] 1999, pet. ref’d).
In issue 36, appellant contends that the trial court deprived him of his “‘sacred
right’” to attack De Los Reyes’s credibility when it sustained the State’s objection to
appellant’s representation that, in her prior statement De Los Reyes had said, “I went
to look and see if I —— the vehicle, but it went by too fast, and I didn’t see it.” During
her testimony De Los Reyes admitted that she had previously testified, “‘I went to
,”
look at it, but it passed by too fast.
Had appellant argued that De Los Reyes had not seen the car, we would agree
that such argument was a reasonable deduction from the evidence. Appellant’s
41
representation to which the State objected, however, concerned what De Los Reyes
had said; and that representation was a misstatement of the evidence. The trial court
did not err in sustaining the State’s objection.
Issues 37 through 39 concern the State’s closing argument. Appellant
complains that the State’s arguments about what Babineaux and Pearson told the
police went beyond the evidence. Appellant complains that the prosecutor
impermissiny bolstered the credibility of Pearson, Hill, and Babineaux.
In arguing to the jury, counsel may draw from the facts in evidence all
inferences that are reasonable, fair, and legitimate, and will be afforded great latitude
without limitation in this respect so long as the argument is supported by the evidence
and offered in good faith. Adams v. State, 813 S.W.2d 698, 700 (Tex.
App—Houston [lst Dist] 1991, pet. ret’ d) (citing Grz'fi’z‘n v. State, 554 S.W.2d 688,
690 (Tex. Crim. App. 1977)). To determine the propriety of a prosecutor's argument,
we consider the entire argument, not just isolated statements. Mosley v. State, 686
S.W.2d 180, 183 (Tex. Crim. App. 1985). Although misstatements by the prosecutor
are not constitutional in nature, they can affect a defendant’s substantial rights.
Coggeshall v. State, 961 S.W.2d 639, 643 (Tex. App—Fort Worth 1998, pet. re? d).
Appellant complains that the argument that Babineaux told the police that he
was involved and went with appellant was outside the record. The jury, however, had
heard evidence that Babineaux made two statements to the police. They also heard
42
Babineaux’s testimony about what had happened on the night of the shooting,
including his riding around with appellant and Babineaux’s involvement in retrieving
the victim’s gun. To argue that Babineaux included these matters in his statement to
the police was a reasonable inference.
We overrule issue 37.
Appellant also complains about the State’s argument that Pearson told the
police about the gun. Pearson, however, had testified, “I told [David] that the gun
that he took from my house, that I told the police about it, and they are going to be
coming to get it and that was it.” The State’s argument did not refer to evidence
outside the record.
We overrule issue 38.
Finally, appellant complains that the State improperly commented on the
credibility of its witnesses when the prosecutor argued, “The one thing [appellant]
didn’t count on, is that when asked, [Pearson, Hill, and Babineaux] were going to tell
the truth to police.”
The argument was responsive to appellant’s attack on the witnesses’ credibility
and was a reasonable inference from the evidence before the jury. See Castillo v.
State, 939 S.W.2d 754, 761 (Tex. App—Houston [14th Dist.] 1997, pet. ref’d)
(statements that witness credible permissible when a reasonable inference from
43
evidence); Sosa v. State, 841 S.W.2d 912, 914 (Tex. App—Houston [1st Dist.] 1992,
no pet.) (jury argument that answers argument of opposing counsel is appropriate).
We overrule issue 39.
RESPONSE TO JURY QUESTION
In issue 40, appellant contends that the trial court erred by denying his request
for an oral response to the jury’s question about the meaning of “specifically” in the
charge. The question read:
As used in the 7th paragraph originating on page 3 of the charge, does
“specifically intended to cause the death of David Garmany Bane”
require a different level of culpability than “intentionally caused the
death of David Garmany Bane” as that phrase is used in the 6th
paragraph originating on page 3 of the charge, and if so what level of
culpability?
The court responded, “The word ‘specifically’ has no legal meaning. The level
of culpability is the same for both paragraphs.” When the court asked the defense
whether it had any objections to the response, the defendant stated that it did not. The
court then indicated that it was “just going to send in a written response,” and
appellant objected, requesting that the court give the instruction orally in open court.
Appellant now contends that the court failed to comply with article 36.27 of the Code
of Criminal Procedure and that he was harmed because the response misstated the
law.
44
The trial court violated article 36.27 when it denied appellant’s request to
reSpond orally in open court. Reidweg v. State, 981 S.W.2d 399, 402 (Tex.
App.——San Antonio 1998, no pet.) (op. on reh’g). Appellant, however, has not
demonstrated that he was harmed by the instruction. See id. at 403 (citing McGowan
v. State, 664 S.W.2d 335, 358-59 (Tex. Crim. App. 1984), and implicitly placing
burden on appellant to show harm). Because appellant did not object to the contents
of the response, he has waived any objection to the content of the response. See
McGowan, 664 S.W.2d at 358 (failure to specify grounds for objection to answer
waives error). Additionally, on appeal, he does not explain his contention that the
response “was an incorrect statement of hornbook law that altered Appellant’s
culpability to the State’s benefit and his detriment.”
We cannot conclude that the failure to instruct orally “had a substantial and
injurious effect or influence in determining the jury’s verdict.” King, 953 S.W.2d at
271.
45
We overrule issue 40.
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Justices Hedges, Andell, and Duggan.8
Do not publish. TEX. R. APP. P. 47.
8 Justice Lee Duggan, Jr., retired Justice, Court of Appeals, First District of
Texas at Houston, participating by assignment.
46
previous finding that appellant was indigent, appellant requested that the costs of
these transcripts be charged to the State.
The record reflects that Attorney Charles Freeman appeared as retained counsel
as of March 14, 1997. Appellant did not reurge the request for free transcripts until
sometime in May 1997, representing that the transcripts were necessary for
impeachment. He alleged indigence, but did not provide facts or an affidavit in
support of the allegation.
The motion was not heard until May 20, 1997, three weeks prior to the June 9
trial date. Referring to appellant’s having made a $70,000 bond, having retained
counsel, and being employed, the court found that appellant was not indigent and
denied the request. After the State indicated that it had approval to obtain transcripts
of appellant’s testimony and that of co-actor Shannon Babineaux, the court provided
that the defense could have copies of that testimony for the cost of copying. The
court also observed that it had presided at both trials and did not think that there had
been discrepancies of any importance between the testimony of the State’s witnesses
at the first and second trials. Otherwise, the court stated it would have ordered a free
transcript. The court reiterated that the defense could receive a fair trial without the
“primarily duplicitous testimony from the second trial,” but that it did need
appellant’s and Babineaux’s testimony.
Counsel represented that he had talked with Attorney Peacock and the
investigator about the testimony of Jacqueline Pearson and Curtis Hill and believed
that their testimony in the second trial differed from that in the first. The sole
example related to Pearson’s testimony about a letter.
The court observed that there had not been discrepancies of any importance.
If Pearson were to deny she had said something at the second trial, counsel could then
have the reporter read the statement to the jury. Counsel then requested a thirty-day
continuance. The court denied the request, but reiterated its direction to the reporter
to locate Pearson’s testimony immediately after jury selection. Just prior to
submission of the charge to the jury, appellant asked the court for a “transcript of the
testimony from the second trial” for purposes of appeal. The trial court overruled the
request.
As a matter of constitutional equal protection, an indigent criminal defendant
is entitled to a free transcript of prior proceedings when that transcript is needed for
an effective defense or appeal. Britt v. North Carolina, 404 US. 226, 227, 92 S. Ct.
431, 433 (1971) (citing Griflin v. Illinois, 351 US. 12, 19, 76 S. Ct. 585, 591, 100
(1956)); Armour v. State, 606 S.W.2d 891, 893, 894 (Tex. Crim. App. [panel] 1980).
“It is settled that an indigent defendant is entitled upon timely request to be furnished
without cost, for use at a subsequent trial, a transcription of the earlier mistrial
testimony of the State's witnesses.” Richardson v. State, 666 S.W.2d 336, 338 Tex.
7App—Houston [1st Dist] 1984, no pet. ) (citing Holden v. State, 641 S.W.2d 919(Tex. Crim. App. 1982) and Billie v. State, 605 S.W.2d 558 (Tex. Crim. App. 1980)
(as modified on State’s motion for rehearing)).
In the context of discussing an indigent’s right to transcripts for purposes of
appeal, the Fourteenth Court has stated that “[t]he trial court has complete discretion
in its determination of indigency.” T afarroji v. State, 818 S.W.2d 921, 923 (Tex.
App—Houston [14th Dist] 1991, no pet). A defendant seeking transcripts of a prior
mistrial must do so in a timely manner and pursue the request with due diligence. See
Billie, 605 S.W.2d at 561-62. A court will presume an indigent defendant’s need for
transcripts of the State’s testimony from a former mistrial, and the State has burden
of showing lack of need when it desires to oppose a defendant’s motion for
transcripts. Armour, 606 S.W.2d at 894. In determining whether the State has met
its burden, the court will consider whether the State has shown that the transcript
would not have been of value to the defendant and whether there was an adequate
alternative to providing the transcript. See id.
We conclude that appellant did not diligently pursue his request for transcripts.
Attorney Peacock filed the first motion for transcripts on January 16, 1997, over four
months after the second mistrial. No affidavit of indigence accompanied the motion.
Appellant only represented, “Defendant has previously proven to the Court that he
is indigent and therefore cannot afford such expense.” The question, however, was
8
whether appellant was indigent at the time of the request, not at the time of his prior
trial. Cf. Abdnor v. State, 712 S.W.2d 136, 142 (Tex. Crim. App. 1986) (when
transcripts requested for appeal, issue is financial status at time of appeal, not time
of trial).
Attorney Freeman had assumed representation by March 14, 1997, but did not
file another request for transcripts until May 1997. No affidavit of indigence
accompanied the motion. No facts supporting the claim of indigence appeared in the
motion. Counsel only represented that appellant was indigent.
Granted, the delay in appellant’s case was not so great as that in Holden v.
State, 641 S.W.2d 919, 920 (Tex. Crim. App. 1982), where the defendant waited over
a year and did not file his motion until the first day of trial. See also Tafarroji, 818
S.W.2d at 923 (no diligence when request for transcripts for purposes of appeal filed
over a year after filing of notice of appeal). Appellant’s case, however, is also
distinguishable from one in which an appellant files his request within weeks after the
mistrial and repeatedly attempts to obtain a ruling on the motion. See, e. g., Armour,
606 S.W.2d at 891-92 (appellant filed motion fifteen days after mistrial, presented it
to presiding judge the same day, and several times thereafter spoke to judge about the
motion). We conclude that appellant was notrdiligent in asserting his indigence.
Even if appellant had been diligent, the alternative the court provided appellant
was adequate. “Relevant factors in the determination of need for a free transcript are
9
the value of the transcript of the former trial in connection with the trial or appeal for
which it is sought, and the availability of alternative devices that would fulfill the
same function as the transcript.” Santos v. State, 681 S.W.2d 208, 211 (Tex.
App—Houston [1 st Dist] 1984, pet. ref d).
Here, the court confirmed that appellant had transcripts of the first mistrial.
The court also assured that appellant had transcripts of his own testimony and that of
the co-actor from the second mistrial. Had the court ascertained that there had been
discrepancies of any importance between the testimony of the State’s witnesses at the
first and second trials, the court would have ordered a free transcript. Counsel at the
third trial apparently had access to the counsel and investigator for the first two trials,
and when he noted a potential discrepancy in Pearson’s testimony, the court ordered
the reporter to read the testimony to counsel immediately after jury selection. This
case does not present a situation where appellant had to rely on access to a court
reporter during the course of the retrial. Cf. Britt, 404 US. 2 at 229, 92 S. Ct. at 434
(citing Wilson v. McMarm, 408 F.2d 896, 897 (2d Cir. 1969), in which such an
alternative was found inadequate). Unlike the defendant in Armour, 606 S.W.2d at
894, appellant was not forced to locate impeaching testimony at the end of each day’s
proceedings during the retrial.
Instead, given all of the resources available to appellant, his case compares
more than favorably to the situation in Britt. In Britt, 404 US. at 229, 92 S. Ct. at
10