Anderson v. State

• Citation: 717 S.W.2d 622
• Decision Date: 02 July 1986
• Docket Number: No. 69135,69135
• Parties: Johnny Ray ANDERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 622

717 S.W.2d 622

Johnny Ray ANDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 69135.

Court of Criminal Appeals of Texas,

En Banc.

July 2, 1986.

Charles D. Carver, Port Arthur, Ronald Plessala, Nederland, for appellant.

James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

OPINION

WHITE, Judge.

This is an appeal taken from a conviction for capital murder. V.T.C.A., Penal Code Sec. 19.03. The death penalty was imposed after the jury answered affirmatively the two special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings twelve grounds of error before this Court. The sufficiency of the evidence to support the verdicts was contested. We affirm the conviction.

Because appellant challenged the sufficiency of the evidence, we will review the facts of the instant offense. On October 1, 1981, the body of Ronald Goode, the victim, was discovered in a wooded area near Loop Road in northern Jefferson County. His car was found parked on Loop Road, approximately 20 feet from where his body lay. Several shotgun shells and bullet casings were also found at the scene: one live 30.06 shell and two fired 30.06 casings were found in the woods near the body of the deceased; one .410 shotgun shell was found on the road; and one fired .410 shell was found in the grass next to the road. Ronald Goode had been shot three times. His death was caused by a 30.06 gunshot wound to his head.

At trial the State offered the theory that a conspiracy existed between the appellant, Rowena Anderson (appellant's mother), Laura Goode (appellant's sister and the victim's wife), and Delvin Johnson to kill the victim.

At the appellant's trial, Delvin Johnson testified for the State. Johnson became acquainted with the other three conspirators a couple of months prior to October 1, 1981. On September 30, 1981, Laura Goode asked Delvin Johnson to kill her husband, Ronald Goode, in return for $5,000.00. Johnson accepted this offer. On that same day, Rowena Anderson offered Johnson $6,000.00 to take part in the murder of Ronald Goode.

Later that day, a 30.06 rifle was delivered to Rowena Anderson's home. At this time, Johnson, the appellant, Laura Goode and Rowena Anderson made their plans for the killing of Ronald Goode. After the four conspirators agreed to a plan, appellant and Johnson left at either midnight or in the early morning hours of October 1, 1981. They made the trip in Johnson's car, taking the 30.06 rifle and the .410 shotgun with them.

They stopped at one point, while the appellant made a phone call to lure Ronald Goode out to the Loop Road, where his body was later discovered. During their ride to this designated area, appellant told Johnson that Laura Goode was going to pay the appellant $10,000.00 for murdering Ronald Goode. This money was to come from the insurance policy on the life of Ronald Goode, of which Laura Goode was the beneficiary.

When Ronald Goode arrived at the murder scene, appellant and Johnson were waiting for him. Appellant shot Ronald Goode the first time with the .410 shotgun. This did not kill Goode, so the appellant beat Goode with the butt of the shotgun. While Goode, still alive, crawled into the woods by the side of Loop Road, the appellant retrieved the 30.06 rifle from Johnson's car. Appellant and Johnson followed Goode into the woods, where Johnson held a cigarette lighter so appellant could clearly see the prone victim well enough to shoot him again. Appellant then shot Goode twice with the 30.06. One of these two shots was to Goode's head. Appellant and Johnson then left the murder scene.

Police investigators later recovered the shells and casings which were at the scene, as well as the .410 shotgun and 30.06 rifle used in the murder. Analysis by the Department of Public Safety laboratory revealed that the shells and casings found at the scene were fired from the said guns.

In his first ground of error, appellant complains that the trial court erred by not granting his motion for new trial. Appellant stated in that motion that the testimony of his mother, Rowena Anderson, was newly available to his defense.

Appellant's sister, Laura Goode, and Rowena Anderson, were also his co-defendants to the charge of capital murder. Originally, they were tried on the charges first. Laura Goode was convicted and a mistrial was declared in the case against Rowena Anderson. At this point, the State requested that the appellant be tried before the retrial of Rowena Anderson. Appellant objected because Rowena Anderson stated in an affidavit that she wished to testify on her son's behalf. She also stated in the affidavit that if appellant's case was tried first and she was called as a witness, that she would invoke her Fifth Amendment right to not incriminate herself.

The trial court granted the State's request to try the appellant before retrying his mother. After his conviction, appellant was sentenced by the trial court on February 12, 1983. His mother was acquitted in her second trial on July 21, 1983.

In a motion to abate appeal filed on February 16, 1984, appellant requested this Court to order the trial court to conduct an evidentiary hearing on the issue of the newly available testimony of his mother, who had been acquitted seven months prior to the filing of the motion. This Court denied the motion.

On April 2, 1984 [more than one year after appellant was sentenced] he filed a motion for new trial with the trial court. After stating that "this court no longer has jurisdiction to entertain" that motion, the trial court ordered the clerk of his court to "immediately transmit the motion to the Clerk of the Court of Criminal Appeals." On April 6, 1984, appellant filed a second motion to abate appeal with this Court. Attached to this was the appellant's motion for new trial and his mother's affidavit, which set out in detail what her testimony would be at appellant's new trial. This Court denied that motion on April 6, 1984.

Appellant was barred from calling his mother as a witness in his defense. A defendant may not call as a witness a co-defendant who has indicated she will assert her privilege against self-incrimination. Whitmore v. State, 570 S.W.2d 889 (Tex.Cr.App.1978).

However, after the co-defendant witness has been finally convicted or acquitted, that witness' testimony becomes available to the defendant. Even though the witness' testimony is more properly described as "newly available," this Court has held that the witness' testimony is to be considered "newly discovered." Whitmore, supra; Franco v. State, 491 S.W.2d 890 (Tex.Cr.App.1973). A defendant can bring this to the trial court's attention in a motion for new trial. Art. 40.03(6), V.A.C.C.P.

Article 40.05, V.A.C.C.P., also requires that a motion for new trial be filed within "30 days after the date the sentence is imposed." In the instant case, appellant filed his motion for new trial 415 days after the trial court imposed the death penalty.

In Whitmore, supra, the defendant also failed to file his motion for new trial on time. This Court held that "neither ... (a rule of evidence or a valid statute governing the time for filing motions for new trial) ... can be applied so as to deprive an accused of a right secured by the Constitution." Whitmore, supra. This Court then made a determination of whether the defendant exercised due diligence in filing his motion for new trial after the witness became available. Since the defendant filed his motion for new trial four days after the witness became available, this Court decided that he acted with due diligence. We will apply the same test to appellant's motion for new trial.

After his co-defendant's testimony became available to him appellant waited 256 days, over eight months, before filing his motion for new trial. In his motion for new trial, appellant's attorney (Mr. Carver) states that from July 21, 1983, until October 4, 1983, he was involved in the defense and appeal of two other capital cases. However, concerning the 180 days, six months, from October 5, 1983, until April 2, 1984, appellant's attorney gives no adequate excuse except that he was clearing a backlog of cases. Also, appellant had two attorneys representing him on appeal. There was no indication in appellant's motion that his other attorney (Mr. Plessala) was unable to timely file a motion for new trial. Therefore, there is no adequate justification for the delay that occurred before a motion for new trial was filed in the instant case. We hold that appellant failed to exercise due diligence in filing his motion. Appellant's first ground of error is overruled.

Appellant argues, in his second ground of error, that the trial court committed reversible error by compelling him to proceed to trial in advance of his mother, thereby denying the appellant compulsory process of a witness. Appellant incorporated, in this second ground, all arguments and authorities cited in his first ground of error. He offered nothing else for this Court to review. Appellant's second ground of error is overruled.

In appellant's sixth ground of error, he states that the trial court erred by admitting hearsay testimony from the first witness called by the State. Appellant complains that this testimony was prejudicial to him, concerned the acts and statements of third persons, and was timely objected to by his counsel.

Under questioning on direct examination the State's witness testified as follows:

"Q. Was there any conversation about where Johnny's car was?

"A. Yes, sir. he said that him ...

"DEFENSE ATTORNEY: Your Honor, I am going to object to hearsay declarations by Mr. Ronnie Goode.

"THE COURT: Overruled.

"A. He said that him and his wife was having trouble and that she had the car."

Since the deceased's wife, Laura Goode, was appellant's co-defendant, he claims this testimony was prejudicial because it helped to show a...