Turner v. State

• Citation: 715 S.W.2d 847
• Decision Date: 28 August 1986
• Docket Number: No. B14-84-104-CR,B14-84-104-CR
• Parties: Frances Louise Finster TURNER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 847

715 S.W.2d 847

Frances Louise Finster TURNER, Appellant, v. The STATE of Texas, Appellee.

No. B14-84-104-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Aug. 28, 1986.

Lewis Dickson, Houston, for appellant.

William Meitzen, Dist. Atty., Frank Follis, Asst. Dist. Atty., Richmond, for appellee.

Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.

SUBSTITUTE OPINION ON MOTION FOR REHEARING

MURPHY, Justice.

Appellant was charged by indictment with the capital murder of her husband, Robert Turner. Appellant pleaded not guilty, but was found guilty of the offense of capital murder by the jury after a lengthy trial. The jury failed to answer all the special issues on punishment affirmatively, therefore the trial court assessed punishment at life imprisonment in the Texas Department of Corrections.

Although appellant raises fourteen grounds of error, our disposition of the case requires only that we address two issues. Accordingly, we find it necessary to respond only to the following contentions: (1) whether the trial court committed reversible error by allowing the State to introduce into evidence before the jury a certified copy of the trial court's written contempt order holding appellant in contempt for refusing to give five handwriting exemplars; and (2) whether the trial court erred in overruling appellant's motion to set aside the indictment and discharge for failure to provide a speedy trial. On May 1, 1986, we issued an opinion in which we ordered that appellant's conviction be reversed and remanded. We subsequently withdrew this opinion in order to consider the State's motion for rehearing. This opinion is substituted for the previous opinion, and is dispositive of both appellant's grounds of error on original submission and the State's grounds of error in its motion for rehearing. We again reverse and remand.

As the sufficiency of the evidence is not challenged, a detailed recitation of the facts surrounding the murder of appellant's husband is not necessary. It suffices to state that on March 18, 1982, Robert Turner was murdered at a roadside park on U.S. Highway 59 in Fort Bend County. Michael Hunter, the admitted killer, testified to the facts surrounding the murder in exchange for a sentence of thirty years confinement in the Texas Department of Corrections. He testified that he and appellant had several discussions about killing the deceased, and in fact had unsuccessfully attempted to do so on two prior occasions. He testified that both appellant and her daughter, Sherri Frank, helped plan the murder and that on the day the killing took place appellant allegedly lured the deceased to a restroom at the roadside park. It was there that Hunter launched his attack which resulted in Turner's death. Appellant never denied that she was present and witnessed the murder: she denied, however, any knowledge or participation in the killing.

I.

Appellant's first four grounds of error challenge the admissibility of a written contempt order issued by the same court that presided over her murder trial. Appellant's fifth and sixth grounds challenge the admissibility of facts surrounding her unsuccessful contest of a Colorado court order for handwriting exemplars. The Colorado order was issued in connection with an unrelated alleged forgery investigation. For the reasons stated below, we are of the opinion that the introduction into evidence of the written contempt order constituted the admission of an extraneous offense, and that it was not admissible under any exception to the rule prohibiting the introduction of such offenses.

In order to adequately present the error which occurred by reason of the admission into evidence of the contempt order, we find it necessary to discuss the testimony which was developed at trial as to both the Colorado and Texas exemplar requests and the ultimate admission of the contempt order at issue. The Prosecution was permitted to put into evidence an abundance of evidence regarding handwriting exemplar requests both in Colorado and Texas. As to the Colorado proceedings, the Prosecutor offered testimony that on June 14, 1982, appellant was in Colorado and was served with an order to give some handwriting exemplars in connection with an alleged forgery investigation. The investigation was in regard to one of her husband's life insurance policies. An FBI agent, Michael Igoe, testified that appellant, through her Texas attorney and through a retained Colorado attorney, contested by a motion to quash, the validity of the process. Appellant complied with the order within a little more than an hour's time, and provided the Colorado authorities with Exhibit 98, the requested samples.

Both in and out of the presence of the jury, appellant objected to evidence surrounding the Colorado court order for handwriting exemplars because it was irrelevant and immaterial to her murder trial and constituted the admission of an extraneous offense. Defense counsel argued that its sole effect would be to prejudice the jury. The State argued that the testimony of the facts surrounding appellant's unsuccessful contest of the Colorado court order were relevant to show her motive in killing her husband in that she arranged his murder in order to recover insurance proceeds. The State also argued that even though appellant did comply with the order, her initial contest of the process was relevant to show her "attitude" toward court orders and to show her lack of cooperation. Furthermore, the State alluded to the fact that there would be "an attempt to proffer further evidence about her attitude toward court orders in this court." Appellant's objections were overruled, and the jury was permitted to hear detailed testimony of the facts surrounding the Colorado court order for handwriting exemplars.

Later in appellant's trial, the court excused the jury to hear her motion in limine. During the hearing, the court heard testimony about appellant's alleged refusal to give additional exemplars to authorities in Fort Bend County. The authorities wanted appellant to copy the text of several incriminating letters, Exhibits 79, 80 and 81, in order to compare the handwriting and to confirm appellant's status as the author. The effect of the State's proffer of the contempt order would be to show not only appellant's refusal to provide the exemplars, but also that the same judge who was presiding over her murder trial had ordered her jailed for contempt of court. Exhibit # 117, the contempt order, was offered by the State as tangible evidence of appellant's refusal to comply with the request for exemplars, and of her subsequent jailing for that refusal.

Appellant objected to the proffer of the testimony regarding her refusal and of the contempt order as evidence of that refusal on the basis that such would constitute the admission of an extraneous offense, and that the contempt order and circumstances surrounding the entry of the order were irrelevant and immaterial to the proceedings at hand.

The State contended that the contempt order would show "a pattern of conduct" on appellant's part, as well as her lack of cooperation. The State argued that the contempt order was admissible and could be considered by the jury as an inference of guilt.

The trial court overruled appellant's objections to the admissibility of the contempt order, and State's Exhibit # 117 was admitted into evidence. Further, the trial court permitted the State to read the contents of Exhibit # 117 to the jury. That exhibit provided in pertinent part the following:

On the 22nd day of December, 1982 the Court having ordered Frances Louise Finster Turner to submit handwriting exemplar as ordered by the Court on December 22, 1982 at 11:30 A.M. at Jury Room 268th District Court, Fort Bend County, Texas and further Defendant Frances Louise Finster Turner refused to obey Court order to submit handwriting exemplar, the Court is of the opinion that Defendant, Frances Louise Finster Turner is in contempt of Court, therefore;

It is ORDERED, ADJUDGED and DECREED that Defendant Frances Louise Finster Turner be committed to the Fort Bend County Jail to remain in custody day to day until Defendant Frances Louise Finster Turner complies with Court order to submit handwriting exemplar or until further orders of this Court.

SIGNED and ENTERED this the 22nd day of December, 1982.

It is in this context that appellant contends that the admission into evidence of the written contempt order violates the rule prohibiting the introduction of offenses extraneous to the crime charged. The responsive argument of the State is that the testimony regarding the requests for handwriting exemplars and the contempt order were necessary and relevant to show that a conspiracy existed to kill Robert Turner. Appellant's refusal to give the second requested handwriting samples and the resulting contempt order are relevant, according to the State, as proof that the "conspiracy" to kill Robert Turner continued long after the actual murder took place.

The State contends that appellant's failure to comply with the court's order for handwriting exemplars which resulted in her being held in contempt of court constitutes a civil and not a criminal offense. The State argues that because appellant's being held in contempt of court was not a criminal offense, the extraneous offense rule is inapplicable. We disagree.

First we note that "[c]ontempt proceedings are generally criminal in nature whether they grow out of criminal or civil actions. It follows that the proceedings should conform as nearly as practicable to those in criminal cases." Ex Parte Payne, 598 S.W.2d 312, 316 (Tex.Civ.App.--Texarkana 1980, no writ) (disapproved on other grounds in Huff v. Huff, 648 S.W.2d 286 (Tex.1983)). Second we note that the extraneous offense rule has not been limited to adjudicated criminal offenses, but instead has been found applicable to extraneous criminal "matters." See, e.g., ...