Gary Wayne Johnson v. State

Johnson-GW v. State

AFFIRMED

APRIL 26, 1990

NO. 10-89-078-CR

Trial Court

# 25989

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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GARY WAYNE JOHNSON,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

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From 18th Judicial District Court

Johnson County, Texas

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O P I N I O N

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In this case the Appellant Gary Wayne Johnson was indicted for unauthorized use of a Motor-Propelled Vehicle, plus two enhancement counts alleging that he had been twice before convicted and incarcerated for felony offenses, to-wit, theft in 1981 and robbery in 1974. Appellant pleaded not guilty to the primary charge and not true to both enhancement paragraphs. Trial was had to a jury, which found him guilty of the primary charge and found true to both enhancement paragraphs, which jury assessed his punishment at life imprisonment. Appellant was duly sentenced in accordance with the verdict, from which he appeals upon six points of error.

We have carefully considered all of Appellant's points and contentions and overrule all of same and thereby affirm the trial court's judgment.

Appellant's first point asserts the trial court erred in allowing the trial to continue without Appellant being present, and that there was no evidence of a voluntary absence by Appellant to comport with Article 33.03 of the Texas Code of Criminal Procedure. Article 33.03 in its pertinent parts provides:

"In all prosecutions for felonies, the defendant must be personally present at the trial, . . .; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial . . . ."

On January 14, 1988, Appellant was present in court with his then hired attorney, Honorable Tom Whitworth (who was also his bail bondsman) on which occasion Appellant was arraigned and entered a plea of not guilty. After this hearing, Appellant was granted a continuance. Then on January 27, 1989, Appellant was again present in court with Honorable Curtis Pritchard as his attorney, during a pre-trial hearing. Thereafter, his case came to trial on the merits on February 13, 1989, at which time Appellant was present with his attorneys, Messrs. Pritchard and Neill, all during the voir dire examination of the jury panel. The jury was selected, impaneled, and sworn, during all of which procedures Appellant was present, and then Appellant entered a plea of not guilty before the jury.

Then at 9:00 A.M. the next morning, to-wit, on February 14, 1989, when the testimony was scheduled to begin, Appellant was for the first time absent. Appellant's attorneys told the court that Appellant knew he was to be present in court at that time; whereupon the trial court caused the bailiff to call Appellant's name three times outside the courtroom, but received no response. Appellant's counsel requested a 45-minute delay, after which they (Messrs. Pritchard and Neill) reported to the court that they had been unsuccessful in contacting Appellant. No calls had been made to the District Attorney's office to explain Appellant's absence. The trial court delayed the case until 10:15 A.M., at which time Appellant was still not present. Appellant's bondsman was contacted and he reported he had not heard from Appellant. At 10:25 A.M. the court stated it had waited an hour and twenty-five minutes, then expressly made a finding that Appellant had voluntarily absented himself, and proceeded with the trial in Appellant's absence.

We find that the evidence before the trial court at the time of its ruling was sufficient to support the finding that Appellant had voluntarily absented himself from his trial down through the punishment verdict.

Trial was had before the jury on both the guilt-or-innocence phase as well as the punishment phase, all in Appellant's absence. The jury found him guilty and assessed his punishment at life in the Texas Department of Corrections.

On March 27, 1989, Appellant finally appeared in court and was sentenced. At no time does the record show that Appellant put on any evidence to show an involuntary absence.

The issue is whether the trial court abused its discretion in finding Appellant voluntarily absent and proceeding through the trial with Appellant being absent. An appellate court will not disturb the trial court's finding that an Appellant voluntarily absented himself from trial when the Appellant fails to put on any evidence to refute that determination. Stokes v. State (Houston 14th CA 1985) 701 S.W.2d 54, no petition. Moreover, a reviewing court may consider evidence which developed subsequent to the ruling. Moore v. State (Tex.Cr.App. 1974) (en banc) 670 S.W.2d 259. Under the record before us, the Appellant waived his right to be personally present at the trial. Gonzales v. State (Tex.Cr.App. 1974) 515 S.W.2d 920. Appellant's first point is overruled.

Appellant's second point of error asserts the trial court erred in failing and refusing to order witness Clarence Johnson to answer certain questions propounded to him on direct examination by Appellant's counsel.

Witness Johnson was at that time an inmate in the Texas Department of Corrections. He was represented in court by his attorney who had previously represented him in other criminal matters. Johnson's attorney advised the trial court that witness Johnson would refuse to testify by virtue of the 5th Amendment of the United States Constitution, in that anything he might say could incriminate him on other criminal charges. State's counsel then advised the court that witness Johnson had no pending criminal cases against him but that "any connection between him and Gary Johnson would provide me with sufficient evidence to file an organized criminal activities case."

The trial court sent the jury out of the courtroom and permitted Appellant's counsel to ask questions of witness Johnson before the court, inquiring as to his residence address, whether he knew Appellant; whether he knew Deano Beasley (an alleged State informant); whether he was present at any conversations between Deano Beasley and Appellant on the day in question, together with several other questions regarding Appellant's conversations with Beasley; any incentives offered to Appellant by Beasley to induce him into engaging in criminal activity; any encouragement to Appellant by Beasley to induce him into engaging in criminal activity; and the specific circumstances and the substance of the conversation between Beasley and Appellant on the dates in question.

As to each question, witness Johnson's attorney objected and invoked his 5th Amendment rights, whereupon the trial court ruled that witness Johnson's invocation of his 5th Amendment rights was proper.

Appellant contends that the proposed testimony from Johnson was imperative to Appellant's defense of entrapment. Be that as it may, the problem before us is to determine whether the trial court was correct in sustaining Johnson's invocation of the 5th Amendment.

Appellant was charged with unauthorized use of a motor vehicle growing out of a sting operation in Johnson County. Appellant was known to have committed numerous offenses during the course of the sting and had several cases similar to the case at bar pending on the court's docket. Any link to the State's informant or Appellant could have resulted in a charge (one or more) being filed against witness Johnson; that is to say, all questions propounded to witness Johnson might well have required answers relating to violations of various sections of the Penal Code.

We believe the trial court was correct in failing and refusing to compel witness Johnson to answer those questions after Johnson invoked his 5th Amendment privilege. See Hoffman v. United States (1951) 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1116; Farmer v. State (Tex.Cr.App. 1973) 491 S.W.2d 133. We overrule Appellant's second point.

Appellant's third point of error complains the trial court erred in submitting instructions to the jury in the court's charge regarding the law of parties as well as primary offenders for the stated reason that there was no evidence adduced to support both instructions.

As stated, Appellant's arrest for the offense for which he was charged, arose out of a sting operation in Johnson County. The law enforcement officers set up a sham place of business out in a secluded rural area called "B.J.'s Trash and Treasure", for the purpose of buying stolen property, primarily stolen automobiles.

Officer Bob Alford testified that Appellant was at the situs of the operation "to deliver a stolen motor vehicle." A video tape offered in evidence by the State showed Appellant negotiating the price of the stolen automobile with an undercover officer, which was the subject matter of the case at bar. The tape showed Appellant asking, "How much you gonna give me for that one?" Appellant then proceeds to haggle over the price and complains that he has received better prices for other cars he has brought in. Officer Alford testified that Appellant drove the stolen car into the shop, and delivered to him (Alford) the vehicle.

Since evidence of Appellant's conduct acting alone was sufficient to sustain his conviction, no charge on parties was required; however, any error in instructing the jury on the law of parties was harmless. Stein v. State (Tex.Cr.App. 1974) 514 S.W.2d 927; Todd v. State (Tex.Cr.App. 1980) 601 S.W.2d 718. Appellant's third point of error is overruled.

Appellant's fourth point of error contends the trial court erred in overruling Appellant's motion for instructed verdict on the ground that there was no evidence to establish that the automobile involved in the crime for which Appellant was convicted was a "motor-propelled vehicle."

Diane Ketchum, the owner of the automobile in question, described the vehicle in question as a "car", a "Celebrity 1985", and an "automobile". The indictment referred to the car in question as a "motor-propelled vehicle."

On appeal, the reviewing court must consider the evidence in the light most favorable to the verdict. Griffin v. State (Tex.Cr.App. 1981) 614 S.W.2d 155, 159; Girard v. State (Tex.Cr.App. 1982) 631 S.W.2d 162, 163. Reasonable minds could conclude that Diane Ketchum's car, that she drove to work, was in fact a motor-propelled vehicle. Jurors are entitled to make reasonable inferences from the evidence. Indeed, it is common knowledge that the term "automobile" carries with it the connotation or idea of a self-propelled or motor-propelled vehicle. Appellant's fourth point of error is overruled.

Appellant's fifth point of error asserts the trial court erred in admitting into evidence a video tape of the transaction in question because the exhibit contained evidence of extraneous offenses of which Appellant was not charged in Johnson County.

State's Exhibit No. 2 was a video tape containing depictions of Appellant committing various extraneous offenses; in other words, the video tape showed Appellant connected with stolen property other than Ms. Ketchum's automobile which was the subject matter of the case at bar.

Our Court of Criminal Appeals has held that in determining the admissibility of extraneous offenses, evidence of context of the charged offense is almost always admissible under reasoning that events do not occur in a vacuum and that the jury has the right to have the offense placed in its proper setting so that all evidence may be realistically evaluated; rarely will prejudicial value render inadmissible any evidence that is context of the offense. Mann v. State (Tex.Cr.App. 1986) 718 S.W.2d 741, 744. Additionally, evidence of extraneous offenses has been held admissible to show res gestae, identity, scienter, state of mind, motive of the accused, rebuttal to a defensive theory, and for other purposes. The test for determining the admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects. See Rule 403, Texas Rules of Criminal Evidence; Albrecht v. State (Tex.Cr.App. 1972) 486 S.W.2d 97, 99.

In the case at bar, the jury was entitled to see how the Appellant was selling cars to the undercover officers. The sale of the vehicle in question was intertwined with Appellant's unauthorized use. Moreover, the extraneous offenses were admissible to prove Appellant's intent and knowledge as well as the context or res gestae of the offense in question. Appellant's fifth point of error is overruled.

By Appellant's sixth and final point of error he asserts that there was insufficient evidence to show that Appellant was the same person that was convicted of the two prior felony offenses alleged in the indictment.

As stated, the indictment alleged two prior felony enhancement counts, the first being for theft in 1981, and the second being for robbery in 1974.

Appellant argues that no direct link between Appellant and the pen packets was present as none of the witnesses who testified were booking officers who actually took Appellant's fingerprints. We do not agree with this line of reasoning.

One of the several different means by which it may be proved that a defendant is the person previously convicted, is by introduction of certified copies of the judgment and sentence and record of the T.D.C. or a county jail including fingerprints of the accused, supported by expert testimony identifying them with known prints of the defendant. See Daniel v. State (Tex.Cr.App. 1979) 585 S.W.2d 688 and the cases cited therein on page 690.

Without detailing the evidence, suffice it to say that this was the method by which Appellant was identified as the same person who was convicted of the two previous alleged felonies. The proof is ample to this effect. Appellant's sixth and final point of error is overruled.

Judgment of the trial court is affirmed.

AFFIRMED

                               JOHN A. JAMES, JR.

DO NOT PUBLISHJustice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Justice James (Retired)]