Buchanan v. State
| Decision Date | 29 November 1995 |
| Docket Number | Nos. 570-94,571-94,s. 570-94 |
| Citation | 911 S.W.2d 11 |
| Parties | Carl BUCHANAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Winston E. Cochran, Jr., Houston, for appellant.
Ernest Davila, Asst. Dist. Atty., Houston and Robert A. Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITIONS FOR DISCRETIONARY REVIEW
Appellant was charged by indictment with multiple offenses. Cause number 598811, corresponding to petition for discretionary review (PDR) number 570-94 (and court of appeals number 01-93-0209-CR), alleged separate counts of aggravated sexual assault and aggravated kidnapping, both occurring on or about May 17, 1991 against the same named complainant. Cause number 562943, corresponding to PDR number 571-94 (and court of appeals number 01-93-0210-CR), alleged aggravated assault occurring on or about April 28, 1990 against a different named complainant. 1 After a trial before the court on October 14, 1992, appellant was found guilty of the aggravated sexual assault and aggravated kidnapping indictment allegations. The trial court also adjudicated guilt on the aggravated assault offense upon which adjudication had previously been deferred. On December 3, 1992, after reviewing a presentence investigation report and hearing testimony, the trial court assessed punishment at incarceration for terms of 10 years for the aggravated assault, and of 75 years for the aggravated sexual assault and 50 years for the aggravated kidnapping to be served consecutively to the aggravated assault term. The First Court of Appeals affirmed. Buchanan v. State, 881 S.W.2d 376 (Tex.App.--Houston [1st Dist.] 1994).
Appellant filed identical petitions for discretionary review of the convictions arising from both indictments. Questions 1 and 2 involve the aggravated sexual assault and aggravated kidnapping cases, while questions 3 and 4 involve the aggravated assault case. We granted review of only questions 1 and 2 in both petitions. However, since questions 1 and 2 deal solely with issues relevant to the aggravated sexual assault and aggravated kidnapping cases, we conclude that review of petition number 571-94, which involves the aggravated assault case, was improvidently granted.
The record reflects that the aggravated sexual assault and aggravated kidnapping allegations involved a domestic situation between appellant and his long-time girlfriend. The complainant's testimony indicated that they had lived together for over fifteen years. Her testimony also indicated that on May 17, 1991 appellant forced her into a car and drove her to the cemetery containing her parents' graves, and forced her to have sex; and thereafter upon driving out of the cemetery stopped the car and forced her to have sex in the back seat. Subsequently appellant drove to her mother's 2 home and let her out
of the car. Appellant testified that the complainant voluntarily accompanied him and consented to having sex. Over objection, the complainant also testified about an incident that had occurred a few days earlier in which appellant had lured and coerced her into a car and driven off but she had managed to jump out as it drove away. Appellant denied that there was any luring or force involved in that incident, but rather insisted that she had suddenly changed her mind about going with him and jumped out of the slowly moving car before he could stop.
We granted review of two of appellant's questions for review. These read as follows:
1. Is an aggravated kidnapping defendant required to reintroduce at the punishment stage of trial evidence from the guilt stage which conclusively proved that he released the kidnapping victim alive and in a safe place?
2. Is the State's "open file" policy prior to trial sufficient compliance with a request under TEX.R.CRIM.EVID. 404(b) for notice of intent to use extraneous offense evidence?
The court of appeals held that while "the undisputed evidence presented at the guilt phase of the trial indicate[d] that [the complainant] was released at her mother's home, presumably a safe place," the issue of safe release was not litigated at punishment, nor was the evidence adduced at the guilt phase re-offered at punishment. Buchanan v. State, 881 S.W.2d at 378-79. (Emphasis in original.) Accordingly, it overruled appellant's point of error claiming insufficient evidence of release in a safe place. Id. The court of appeals also concluded that the Rule 404(b) notice requirement was fulfilled by giving appellant access to the extraneous offense evidence via the State's open file policy since such gave appellant actual knowledge of the extraneous offense evidence. Id. at 379-80.
In Question Number One, appellant asks whether "an aggravated kidnapping defendant [is] required to reintroduce at the punishment stage of trial evidence from the guilt stage which conclusively proved that he released the kidnapping victim alive and in a safe place?" This question presumes that it was conclusively established in the instant cause that the complainant was released alive and in a safe place. The court of appeals agreed that the evidence at guilt indicated that the complainant "was released at her mother's home, presumably a safe place." Id. at 378. However, it held that evidence of safe release "must be presented during the punishment phase." Id. V.T.C.A. Penal Code, § 20.04(b) makes safe release an issue upon conviction of aggravated kidnapping since it provides that such an offense is a first degree felony "unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree." Therefore, upon appellant's conviction of aggravated kidnapping, the safety or nonsafety of the site of release was an issue before the trial court.
There is no requirement that evidence admitted at guilt/innocence be re-offered to be considered at punishment. Ex parte Kunkle, 852 S.W.2d 499, 502 (Tex.Cr.App.1993), cert. denied, 510 U.S. 840, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993); Wright v. State, 468 S.W.2d 422, 425 (Tex.Cr.App.1971). Thus in the instant cause, the evidence about the complainant being released at her mother's home was before the trial court for consideration in assessing punishment and determining the safe release issue.
In Williams v. State, 851 S.W.2d 282, 286 (Tex.Cr.App.1993), we held that in the trial of an aggravated kidnapping, the accused has Though Williams involved a jury trial and the issue was whether an instruction on the issue of release in a safe place should have been included in the jury charge, the instant cause involving a trial before the court also concerns the issue of safe release which affects the statutory range of punishment. In Williams, the site of release was a cemetery, though the State produced no evidence to show that it was not safe. We concluded that the evidence was sufficient to justify an inference that the cemetery was a safe enough place. Id. at 287. Thus, the issue of release in a safe place was raised, whereupon it became a matter for the factfinder, i.e. in that case the jury, to determine whether the site of release was a safe place. Id. "The burden of persuasion being upon the State, any reasonable doubt on that issue would be resolved in appellant's favor." Id.
the threshold burden of production as to the issue of whether he voluntarily released the complainant alive and in a safe place, i.e. if evidence from any source does raise the issue the burden of production is met. Thereafter, the burden of persuasion shifts to the State, which must convince the factfinder that the place where the accused left the complainant was not safe; and the factfinder must find the place unsafe to a level of confidence beyond a reasonable doubt for the punishment level to be for a first degree felony. Id.
We conclude that the court of appeals erred in its treatment of appellant's claim as to the sufficiency of evidence of aggravated kidnapping based upon the evidence of release in a safe place. The court of appeals concluded that the evidence to raise the issue of safe release must be presented at punishment because "it would be unreasonable to expect our district judges to recall minute details from the guilt phase of the trial." Buchanan v. State, 881 S.W.2d at 378. However, as discussed above, there is no requirement that evidence admitted at guilt/innocence be re-offered to be considered at punishment. Kunkle and Wright, supra. In a footnote in Williams, 851 S.W.2d at 286, n. 2, we observed that "it is likely that evidence raising the issue whether the place of a victim's release was safe will often come out in the course of the State's own evidence of the circumstances of the offense itself, at the guilt phase of trial." (Emphasis added.) We do not consider it to be unreasonable to expect or require the trier of fact, whether the jury or the trial court, to consider the evidence admitted at guilt/innocence when assessing punishment. Thus the answer to appellant's first question for review is that an aggravated kidnapping defendant is not required to reintroduce evidence from the guilt stage at the punishment stage of trial. Accordingly, we sustain appellant's first question for review. 3
In Question Number Two, appellant asks whether the State's "open file" policy sufficiently complies with Rule 404(b)'s requirement that in the face of a timely request reasonable notice in advance of trial be given as to intent to introduce in the State's case in chief extraneous evidence of other crimes, wrongs, or acts. The record reflects that when the State began to question the complainant about an incident with appellant which had occurred a few days prior to the incident for which appellant was on trial, appellant...
To continue reading
Request your trial
-
Jaubert v. State
... ... However, an "open file" policy is not a substitute for discovery. In fact, the Court of Criminal Appeals has held that a State's open file policy will not satisfy a Rule 404(b) request. Buchanan v. State, 911 S.W.2d 11, 15 (Tex.Crim.App.1995) ... 65 S.W.3d 85 ... There are no controls on the "open file." In the criminal courts, the defendant is not entitled to a copy of the file, but is only permitted to examine the file and take notes. The State can add to or ... ...
-
Jaubert v State
... ... However, an "open file" policy is not a substitute for discovery. In fact, the Court of Criminal Appeals has held that a State's open file policy will not satisfy a Rule 404(b) request. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) ... There are no controls on the "open file." In the criminal courts, the defendant is not entitled to a copy of the file, but is only permitted to examine the file and take notes. The State can add to or subtract from the file after the ... ...
-
Lavarry v. State
... ... See TEX. PENAL CODE ANN. § 20.04(d) (Vernon Supp.1996). The case law does not support the State's interpretation of the term "safe place." ... In Buchanan v. State, 881 S.W.2d 376 (Tex.App.--Houston [1st Dist.] 1994), rev'd on other grounds, 911 S.W.2d 11 (Tex.Crim.App.1995), the defendant abducted the victim and drove her to the cemetery where her parents were buried. The defendant made the victim stand on the edge of an open grave and told her, ... ...
-
Green v. State
... ... The State responded to both in the affirmative and advised the trial court that Appellant's counsel had reviewed the file ... Appellant objected on grounds that an open file policy did not satisfy Rule 609(f), citing Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995). The State pointed out that Buchanan is a decision regarding Rule 404(b) not Rule 609(f). The State further argued that, in this case, Appellant was placed on notice of the State's intent to use the prior convictions because they were included in the ... ...
-
Discovery
...of Tex.R.Evid. 404(b) and other evidentiary rules that require specific notice of intent to introduce evidence. Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995). DISCOVERY §13:16 Texas Criminal Lawyer’s Handbook 13-10 §13:16 Form: General Motion for Discovery See our companion book T......
-
Trial Issues
...State’s awareness of an extraneous offense does not indicate an intent to introduce such offense in its case-in-chief. Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995). Merely providing the defendant with a copy of his criminal history will not suffice because it does not provide a n......
-
Error Preservation and Appeal
...the State from the responsibility of complying with the defense’s timely request under Tex. Rule Evid. 404(b). [ Buchanan v. State , 911 S.W.2d 11 (Tex.Crim.App. 1995).] Trial counsel should also file a motion in limine directing the State to instruct witnesses to not mention or otherwise a......
-
Table of cases
..., 294 S.W.2d 722 (Tex.Crim.App. 1956), §16:14 Brown v. State , 828 S.W.2d 762 (Tex.Crim.App. 1991), §§16:120, 16:123 Buchanan v. State , 911 S.W.2d 11 (Tex.Crim.App. 1995), §11:80 Bullcoming v. New Mexico , 131 S.Ct. 2705 (2011), §7:120 Bumgarner v. State , 2006 Tex. App. LEXIS 6066 (Tex. A......