Adams v. State

• Decision Date: 16 December 1987
• Docket Number: No. 2-86-155-CR,2-86-155-CR
• Parties: Douglas Neal ADAMS v. The STATE of Texas
• Court: Texas Court of Appeals

Page 622

744 S.W.2d 622

Douglas Neal ADAMS v. The STATE of Texas

No. 2-86-155-CR.

Court of Appeals of Texas,

Fort Worth.

Dec. 16, 1987.

Rehearing Denied Jan. 27, 1988.

Pamela J. Moore, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., C. Chris Marshall, Tim White, and Betty Stanton, Asst. Dist. Attys., Fort Worth, for appellee.

Before BURDOCK and LATTIMORE, JJ.

OPINION

BURDOCK, Justice.

Douglas Neal Adams appeals from his conviction for possession of a controlled substance with two prior felony convictions proven for enhancement. See TEX.REV.CIV.STAT.ANN. art. 4476-15, sec. 4.04(a) & (b) (Vernon Supp.1987). A jury found the appellant guilty and assessed his punishment at 60 years in the Texas Department of Corrections. The appellant challenges his conviction in five points of error on the grounds of prosecutorial misconduct, improper jury argument, newly discovered evidence and error in the jury charge. We affirm the appellant's conviction.

On December 19, 1985, a Fort Worth police officer pulled his car behind a car driven by the appellant. Upon running a routine license plate check, the officer was informed by the dispatcher that the vehicle was listed as stolen. The officer pulled the car over and placed appellant under arrest. Pursuant to the arrest, a search of the appellant was conducted which produced a cellophane bag containing two capsules. The arresting officer turned the capsules in to the police property room. The two capsules were later taken to the Fort Worth Crime Lab for testing. The person who performed the tests was criminologist Harold Loveless. Tests on these capsules revealed that one of them contained heroin.

At the appellant's trial, which began July 1, 1985, the Director of the Crime Lab, Mr. Frank Shiller, testified regarding the test results on the capsules. During the State's direct examination, the following testimony was elicited:

STATE'S ATTORNEY: Directing your attention back to December of 1985, ... did you have an employee with the Fort Worth Crime Lab by the name of Harold L. Loveless?

MR. SHILLER: Yes.

STATE'S ATTORNEY: And what was his position with the Fort Worth Crime Lab?

MR. SHILLER: Mr. Loveless was employed by the Crime Lab as a Laboratory Criminologist.

STATE'S ATTORNEY: And where is Mr. Loveless now?

MR. SHILLER: Mr. Loveless resigned recently and has taken other employment.

STATE'S ATTORNEY: And the job change, there was no termination by the Crime Lab of Mr. Loveless or his position, was there?

MR. SHILLER: No.

....

STATE'S ATTORNEY: And the departure that he made recently, was that for a more favorable position?

MR. SHILLER: I'm not aware of the position that he took, the exact job.

STATE'S ATTORNEY: Well, what I'm getting at, is there anything in his departure from the Crime Lab that reflected on his performance of his duties at the Crime Lab?

....

DEFENSE ATTORNEY: Your Honor, we are going to object to this testimony for the reason that it's basically in the matter of the character of Mr. Loveless and outside the scope of his expertise, if any, and we will object to the testimony in regard to the character of Mr. Loveless.

THE COURT: What's your purpose counsel?

STATE'S ATTORNEY: Well, your Honor, we just wanted to establish that there was no--the purpose of Mr. Loveless' departure.

DEFENSE ATTORNEY: Your Honor, we will object to what she is attempting to do in front of the jury.

....

THE COURT: All right. Just prove up his qualifications, Counsel. It's sustained.

....

STATE'S ATTORNEY: And based on your review of the file in this instance and Mr. Loveless' reports and charts that were generated in testing, is there any reason to question the accuracy of Mr. Loveless' tests?

DEFENSE ATTORNEY: Your Honor, we would object to the question as bolstering.

THE COURT: Overruled.

STATE'S ATTORNEY: There is no basis for questioning the results.

MR. SHILLER: No, that's correct.

Before and during the appellant's trial, an investigation was under way by the Fort Worth Police Department concerning the theft of drugs from dormant cases in the Fort Worth Crime Lab. By June 19, 1986, the investigation had focused on criminologist Harold Loveless. As a result of the investigation, Loveless had stopped coming to work on June 19, 1986, and by June 30th had resigned his position. Loveless was never formally charged following the investigation. Although Shiller knew of the facts surrounding Loveless, he did not mention them in his testimony on July 1st during the appellant's trial. Shiller informed the State's attorney of the Loveless investigation the day after he testified, and the State's attorney did not inform the appellant's counsel of the Loveless investigation until July 8, 1986, after the trial's completion.

Upon learning this information, the appellant's counsel filed a motion for new trial on the grounds that new evidence had been discovered and upon the failure of the prosecutor to produce exculpatory material upon request. After a hearing on this motion on August 29, 1986, it was overruled by the trial court on September 5, 1986.

In his first point of error, the appellant contends the trial court erred in denying the appellant's motion for new trial which was based upon newly discovered evidence. The appellant urges that the information regarding the alleged conduct of Loveless would have been material in that it would have enabled the appellant to mount a significant attack upon the chain of custody of the evidence, the integrity of the lab technician, and consequently the admissibility of his report.

To be entitled to a new trial based on newly discovered evidence, the record must reflect that: 1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; 2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence; 3) the new evidence is probably true and will probably bring about a different result on another trial; and 4) the new evidence is admissible and is not merely cumulative, corroborative, collateral or impeaching. See TEX.CODE CRIM PROC.ANN. art. 40.03, subd. 6 (Vernon 1979); Koffel v. State, 710 S.W.2d 796, 806 (Tex.App.--Fort Worth 1986, pet. ref'd); Hayes v. State, 709 S.W.2d 780, 783 (Tex.App.--Houston [1st Dist.] 1986, no pet.).

The record reveals that at the motion for new trial hearing, the prosecutor first told the appellant's attorney of the investigation concerning Loveless on July 8, 1986, after the close of evidence. However, the record also reveals that the investigation was made public on June 10, 1986 in an article in the Fort Worth Star Telegram, and also that the defense attorney was made aware of Loveless' resignation during the direct examination of Frank Shiller. Despite this, the defense attorney objected to any questions posed by the State regarding the reasons for Loveless' departure from the Crime Lab. The appellant's counsel possibly could have discovered the evidence had he not objected and instead pursued the matter upon cross-examination of Shiller. Therefore, while the record shows that the appellant probably did not have actual knowledge of the investigation at the time of the trial, and while it could be said that appellant's counsel's actions at trial were self-defeating, they probably do not show a lack of diligence.

The record reveals that the investigation which constituted the newly discovered evidence actually occurred. Therefore, the requirement that the movant show the evidence is true is satisfied here. See Carpenter v. State, 87 S.W.2d 731, 734 (Tex.Crim.App.1935). However, the movant is also required to show the evidence will probably bring about a different result on another trial. Hayes v. State, 709 S.W.2d at 783. To meet that requirement, the appellant attempted to enter the testimony of a juror from the appellant's trial at the hearing on the motion for new trial. Although the trial court refused to allow the juror to testify, the appellant did make out a Bill of Exceptions to preserve the juror's testimony.

The juror testified that he was left with a false impression of the reason for Loveless' resignation, and that had he known of the investigation surrounding Loveless, his vote on the verdict may have been different. Although this evidence may have had the effect of showing that there could have been a different result in the verdict, we hold that the trial court properly refused to consider the juror's testimony. It is a well established rule that a juror may not impeach a verdict by testifying as to the mental process by which the jury reached its verdict. See Daniels v. State, 600 S.W.2d 813, 816 (Tex.Crim.App.1980); Berry v. State, 588 S.W.2d 932, 935 (Tex.Crim.App.1979); Hill v. State, 493 S.W.2d 847, 849 (Tex.Crim.App.1973). Since such evidence is improper, we will not consider it for the purpose of meeting the requirements of article 40.03. Considering the evidence properly before the trial court, we cannot say the trial court erred in holding that the appellant failed to prove the third element of article 40.03, since he was unable to show that the newly discovered evidence would probably have resulted in a different result on another trial.

The fourth element of article 40.03 requires the movant to show that the newly discovered evidence is admissible, and not merely collateral, corroborative or impeaching. See TEX. CODE CRIM.PROC.ANN. art. 40.03(6) (ch. 426, sec. 5, 1973) TEX.GEN. LAWS 1122, 1127-28, repealed by Act of June 14, 1985, ch. 685, sec. 4, 1985 TEX.GEN. LAWS 2472-73. The appellant asserts that the evidence of the investigation would have been valuable in attacking the chain of custody of the evidence and the credibility of Loveless and the test results. Upon examination of the record, it appears that such evidence concerning the investigation surrounding Loveless would have been inadmissible. Clearly, the evidence surrounding the investigation would be...