Singletary, Johnny v. State

NUMBER 13-98-660-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JOHNNY SINGLETARY

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 130th District Court of Matagorda County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez Opinion by Justice Dorsey

A jury found appellant, Johnny Singletary, guilty of murder. After finding one enhancement allegation to be true they assessed his punishment at life in prison, plus a $10,000 fine. Appellant appeals by eight points of error. We affirm.

I. Facts

Because appellant does not challenge the sufficiency of the evidence to support his conviction only a brief recitation of the facts is necessary. On June 2, 1997, Bernard "Scottie" Wilbanks went to pick up Tina McCormick at T.K.'s restaurant in Bay City, Texas. Wilbanks failed to pick her up, and she never saw him alive after that day. About six days later appellant gave a written confession to the police in which he stated that he had seen Wilbanks backing out of Tina's driveway. He asked Wilbanks for a ride, and he agreed to give him one. When they reached Billups, Wilbanks asked appellant to get out of the car. Appellant refused, and Wilbanks drove to Wilbanks' home. When Wilbanks got out of his car appellant hit him in the head with an ax, killing him.

II. Character Evidence

By point one appellant asserts that the trial court erred by refusing to allow Tina McCormick to testify before the jury that Bernard Wilbanks had been convicted of "child molesting" as rebuttal to the inference that he was a "good guy." During the guilt/innocence phase defense counsel asked Tina on cross-examination, "The fact of the matter is, Mr. Wilbanks was a good guy, right?" She answered, "Right." After further cross-examination counsel, outside the jury's presence, made a bill of exceptions in which Tina testified that Wilbanks had told her that he had been convicted of "child molesting." Upon the State's objection the trial court did not allow the jury to hear that testimony.

On redirect examination the State's attorney asked Tina, "[W]ould you think it would be unusual if Scottie [Wilbanks] picked somebody up in his car and gave them a ride?" She replied, "Scottie was a good person. If somebody was . . . walking or something, he would pick them up. . . ." When the State passed the witness defense counsel informed the trial court that the State's attorney put Wilbanks' character at issue by asking Tina the aforementioned question. The trial court denied counsel's request to question Tina in the jury's presence about Wilbanks' conviction for child molestation.

Appellant argues on appeal that the State improperly introduced evidence of the victim's character, and therefore, the trial court should have allowed the jury to hear Tina's testimony about Wilbanks' conviction. We disagree. In Armstrong v. State, 718 S.W.2d 686, 695 (Tex. Crim. App. 1985) the victim's widow testified that the deceased was a peaceable man. The court held that it was error for the State to introduce the issue of the victim's character, stating, "It is never competent for the State in the first instance to prove that the person slain was peaceable and inoffensive." Id. See Matchett v. State, 941 S.W.2d 922, 931 (Tex. Crim. App. 1996) (quoting the Armstrong Court's holding). In the instant case the State did not put Wilbanks' character in issue. Tina's testimony that Wilbanks was a "good guy" came during cross-examination. Further Tina's testimony cannot be described as character evidence within the meaning of Armstrong. Tina did not testify that Wilbanks was peaceable and inoffensive; rather, she testified that he was a "good person," in response to the State's question relating to whether it was unusual for him to give someone a ride. Appellant's confession showed that Wilbanks had given him a ride just prior to the time that appellant had killed him. The State had a legitimate reason for asking the question in order to determine whether Wilbanks' decision to give appellant a ride was a normal part of his behavior and thus corroborate the confession. We hold that the trial court did not err in excluding Tina's testimony from the jury. We overrule point one.

III. Written Confession

By point four appellant asserts that the trial court erred by admitting into evidence State's Exhibit 41, his written confession, because it concerned an extraneous offense. At the punishment phase the State presented evidence to show that appellant had murdered Linda Lowenhaupt a few days after he had murdered Wilbanks. During the punishment phase Officer Andrew Lewis testified that he had investigated Lowenhaupt's murder and that appellant had given him two written statements in which he confessed to her murder. When the State offered appellant's second written statement into evidence, Exhibit 41, counsel did not object on the basis that the statement contained an extraneous offense. Because counsel did not make this objection to the admissibility of Exhibit 41 error is not preserved, and the complaint is waived. Tex. R. App. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 741 (Tex. Crim. App. 1995). Even if counsel had preserved error article 37.07, section 3(a) of the Texas Code of Criminal Procedure permits the State to introduce evidence of extraneous offenses at the punishment phase as part of "any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant. . . ." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2000). This confession served to prove that appellant had committed Lowenhaupt's murder beyond a reasonable doubt. We hold that the trial court did not err by admitting Exhibit 41 into evidence. We overrule point four.

IV. Photographs

By point two appellant asserts that the trial court erred by admitting into evidence State's Exhibits 48 and 49, photos of injuries to Linda Lowenhaupt. During the punishment phase Dr. Parungao, the medical examiner testified that he had performed Lowenhaupt's autopsy. When the State offered into evidence Exhibits 48 and 49 counsel objected that they were irrelevant, and if relevant, their prejudicial effect outweighed their probative value. The court overruled the objection and admitted the photos. Dr. Parungao testified that Exhibit 48 showed abrasions to Lowenhaupt's nose and a laceration on the left side of her head and also on her forehead. He stated that Exhibit 49 showed a laceration to her forehead and bruises to her lips and eyes.

Rule 403 of the Texas Rules of Criminal Evidence provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Ultimately the admissibility of photographs over any challenge is within the sound discretion of the trial judge. Id. Generally a photograph is admissible if verbal testimony about matters depicted in the photographs is also admissible. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Photographs provide visual evidence of the offense, and the trial court does not abuse its discretion by admitting photographs of the victim into evidence merely because they are gruesome. See Sonnier, 913 S.W.2d at 519.

In the instant case the evidence showed that appellant had murdered Lowenhaupt by hitting her on the head with a stick. The photos were relevant to show the manner and means of her death. The record does not show that the State tried to inflame, confuse, or mislead the jury in its presentation of the photos. Therefore their prejudicial effect does not outweigh their probative value. We hold that the court did not abuse its discretion in admitting Exhibits 48 and 49 into evidence. We overrule point two.

By points three, five, six, and seven appellant asserts that the trial court erred when it admitted crime-scene photos and a photo of Lowenhaupt's body. During the punishment phase Officer Lewis said that the police had found Lowenhaupt's body inside a parked vehicle. When the State offered Exhibits 44-47 into evidence counsel objected that they were irrelevant, and if relevant, their prejudicial effect outweighed their probative value. The court admitted the photos into evidence. Lewis identified Exhibits 44 and 45 as photos of the vehicle's left, rear seat and door panel. There is some blood on the seat and panel. He identified Exhibit 46 as a photo of Lowenhaupt's body in the vehicle's rear seat, the position in which the police had found her. The photo does show some blood on her face and arms. These photos are relevant because they show the reality of the crime scene. See Sonnier, 913 S.W.2d at 513. Lewis identified Exhibit 47 as a photo that an I.D. officer took of Lowenhaupt's corpse at a funeral home. The photo is relevant to show the victim's identity, an element which the State had to prove in order to meet the burden of proof required in article 37.07, section 3(a). These photos are not cumulative, and the record does not show that the State tried to inflame, confuse, or mislead the jury in its presentation of the photos. Therefore their prejudicial effect does not outweigh their probative value. We hold that the court did not abuse its discretion in admitting Exhibits 44-47 in evidence. We overrule points three, five, six, and seven.

V. Prior Conviction

By point eight appellant asserts that the trial court erred by admitting evidence of a prior conviction for robbery because there is no valid indictment or information to support the judgment. Appellant had pleaded guilty to robbery. In the instant case the State used the robbery conviction for punishment purposes and as an enhancement to the indictment. The complained-of information stated that appellant "while in the course of committing theft of property and with intent to obtain and maintain control of said property, caused bodily injury to Silverio Rodriguez by beating him in the fact with his fist. . . ." Appellant argues that his robbery conviction cannot stand because the information contained a typographical error stating that he had beaten his victim in "the fact," rather than in the face.

Article 1.14(b) of the Texas Code of Criminal Procedure provides:

[i]f the defendant does not object to a defect, error or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other post conviction proceeding.

Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2000) (emphasis added). The record does not show that appellant objected to this defect prior to pleading guilty to the robbery charge. Therefore he has waived the right to object to this defect at this time. See Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990) (article 1.14(b) prevents accused from being able to "lay behind the log" when charging instrument is defective and then overturn the conviction on appeal). We hold that the court did not err by admitting evidence of his prior conviction. We overrule point eight.

We AFFIRM the trial court's judgment.

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 13th day of July, 2000.