Adams v. State, 60037

• Citation: 577 S.W.2d 717
• Decision Date: 31 January 1979
• Docket Number: No. 60037,60037
• Parties: Randall Dale ADAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 717

577 S.W.2d 717

Randall Dale ADAMS, Appellant, v. The STATE of Texas, Appellee.

No. 60037.

Court of Criminal Appeals of Texas, En Banc.

Jan. 31, 1979.

Rehearing En Banc Denied March 21, 1979.

Melvyn Carson Bruder, J. Stephen Cooper and George A. Preston, Dallas, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Douglas D. Mulder and Winfield Scott, Asst. Dist. Attys., Dallas, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment was assessed at death.

Appellant's brief contains forty grounds of error in which he contends that: (1) the trial court erred in refusing to admit evidence of extraneous criminal offenses committed by the State's chief witness, David Harris, and in restricting appellant's cross-examination of another State witness, Teresa Turko; (2) the prosecutor improperly withheld a statement made to the police by witness Emily Miller; (3) the trial court erroneously refused to permit appellant to ask venire members certain questions during voir dire, and excused some venire members for cause in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (4) Art. 37.071, V.A.C.C.P., is unconstitutional; and (5) the evidence is insufficient to support the jury's affirmative answer to the second punishment issue.

Appellant was found guilty of the murder of Dallas police officer Robert Wood, who was fatally shot by the driver of an automobile he had stopped for failing to have on its headlights. The shooting occurred at approximately 12:30 a. m. on November 28, 1976, in the 3400 block of North Hampton Road in Dallas.

The State's principal witness was David Harris, who at the time of the offense and trial was sixteen years of age. Harris testified that he ran away from his home in Vidor on November 26, 1976, after stealing money and a car from the house of a neighbor. He also took with him a .22 caliber pistol and ammunition.

Harris drove to Houston, where he spent the night in a shopping center parking lot. On the morning of November 27, Harris drove to Dallas. In Dallas, Harris picked up appellant, who was hitchhiking. Harris and appellant spent the afternoon and evening of November 27 riding around Dallas in the car Harris had stolen, smoking marihuana and drinking beer. That night they went to a drive-in movie.

Harris and appellant left the movie at approximately midnight. Appellant was driving. As they drove south on the street Harris later identified as Hampton Road toward the motel at which appellant was living, they were stopped by a police patrol car. Harris, fearing that he would be identified, slumped down in the front seat so that he would not be seen. As the officer, Robert Wood, approached the driver's window of the car, appellant reached under the front seat where he knew the pistol was located, removed the pistol, shot the officer several times, and rapidly drove away.

After the shooting, appellant drove to his motel, where he and Harris separated. Harris spent the rest of the night in a parking lot, and then returned to Vidor. Harris spent the next several days with friends, to whom he stated that he had shot a Dallas police officer. Harris testified that he made this claim in an effort to impress his friends. Harris was arrested on December 5, 1976, for the theft of the car and was released to the custody of his parents. He was rearrested on December 20, after the Vidor police learned of the incriminating statements he had made with regard to the Dallas murder. Following this arrest, Harris gave a statement detailing his activities in Dallas and identifying appellant as the person who shot Wood.

Appellant, in his testimony, admitted spending the day of November 27 with Harris. But appellant claimed that he and Harris left the movie at approximately 9:30 p. m. and that they separated at a convenience store next door to his motel. Appellant testified that he returned to his motel room no later than 10:00 p. m. and was asleep there at the time of the murder. Appellant's defensive theory was that Harris had shot Wood and was attempting to shift the blame to him.

Pursuant to a motion in limine filed by the State and granted by the trial court, evidence concerning extraneous offenses committed by Harris was first elicited outside the presence of the jury in order that a determination as to its admissibility could be made. Through Harris' own testimony and that of other witnesses, it was established that Harris had committed several burglaries and a car theft during 1975. It was also established that Harris had been adjudicated a juvenile delinquent following another burglary in April, 1976, and was on juvenile probation at the time of appellant's trial. The trial court ruled that this testimony was admissible, and it was subsequently introduced before the jury. However, the trial court refused to permit the introduction of testimony concerning a burglary and a robbery committed by Harris on December 4 and 5, after his return to Vidor from Dallas. We shall hereafter refer to these offenses as the "December offenses."

Testimony concerning the December offenses was elicited from five witnesses. Harris admitted participating in both offenses. Lynn Brown and Randy Hayes, two of the friends with whom Harris was staying at that time, also testified that Harris committed these offenses. Jim Sharon Bearden, the County Attorney of Orange County, and James Jenkins, the Assistant County Attorney, testified that offense reports had been filed in their office with respect to these offenses and that a petition to revoke Harris' probation had been prepared but not filed. Bearden and Jenkins also stated that no decision had been made whether to prosecute Harris as an adult for the offenses. Appellant contends that this testimony was admissible to establish Harris' bias and motive for testifying against appellant.

In general, unadjudicated criminal offenses may not be used to impeach a witness in a criminal case. Art. 38.29, V.A.C.C.P. However, evidence of pending charges against a witness is admissible under certain circumstances for the limited purpose of showing bias, prejudice, interest, and motive of the witness in testifying as he did. Randle v. State, 565 S.W.2d 927 (Tex.Cr.App.1978); Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740 (1934). See also Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977). Appellant argues that the failure of the Orange County authorities to take any action against Harris based on the December offenses affords the basis for an inference that a bargain had been made with Harris in exchange for his testimony. See Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973).

An examination of the record reveals that appellant failed to preserve error with respect to the testimony of Bearden and Jenkins. After questioning both witnesses outside the presence of the jury, as required by the motion in limine, appellant failed to secure a ruling by the trial court on the admissibility of their testimony regarding the December offenses. Appellant may not complain on appeal of the exclusion of testimony in the absence of an offer of the testimony and a ruling by the trial court excluding it from evidence. Norman v. State, 523 S.W.2d 669 (Tex.Cr.App.1975); Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974).

Appellant did obtain rulings from the trial court excluding from evidence the testimony of Harris, Brown, and Hayes concerning the December offenses. However, in arguing for the admission of their testimony, appellant's trial counsel did not raise the contention now made on appeal. The contention made before the trial court was that the evidence concerning the December offenses showed that Harris was on a criminal spree during the time period in question, and that Harris had a propensity to blame others for his own criminal conduct. The following excerpt illustrates the argument made by appellant's counsel:

"THE COURT: Mr. White, I would like to know now, not talking about his criminal activities prior to the shooting of the police officer, I would like to know how the later commission of a burglary and a robbery by (Harris) is material to this case?

"MR. WHITE: Your Honor, I believe that our defense being that this witness well, by his own witness is an accomplice but that it will that he is the perpetrator of the crime and I believe that the evidence will show he was on a criminal spree and he was committing one crime after the other.

"THE COURT: In other words, you want to show he is a criminal generally, is that right, is that it?

"MR. WHITE: Not just a criminal generally, but it's the specific time span from November 26th to December 19th that he was on a criminal spree committing a series of related crimes.

"MR. WHITE: I believe that I have elicited from this (witness) that in relation to the burglary that he was the one that went into the residence, to the trailer and yet upon his arrest he implicated Frank Nelson, Hootie Nelson and Lynn Brown who were not people that went into the residence.

"That in the commission of the robbery he held the rifle, went inside the convenience store, committed the robbery and yet upon his being arrested and giving a statement he implicated two other participants that were not directly

"THE COURT: It's

"MR. WHITE: He has a propensity of committing crimes and blaming it on the closest person at hand."

Not only did appellant fail to urge the admission of the December offenses on the ground now urged before this Court, he made no effort to pursue the question of Harris' bias and motive during the trial. The fact that Harris was on juvenile probation was in evidence. It was also established that by stealing his neighbor's money and car and leaving Orange County Harris had violated...