Carver v. State

• Citation: 510 S.W.2d 349
• Decision Date: 01 May 1974
• Docket Number: No. 47770,47770
• Parties: Jeff Earl CARVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 349

510 S.W.2d 349

Jeff Earl CARVER, Appellant, v. The STATE of Texas, Appellee.

No. 47770.

Court of Criminal Appeals of Texas.

May 1, 1974.

Rehearing Denied May 22, 1974.

Clifford W. Brown, Thomas L. Clinton, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., Dickey Grigg, Asst. Dist. Atty., Lubbock, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

Appellant was tried for murder with malice aforethought with the jury finding him guilty of murder without malice and assessing his punishment at five (5) years' confinement in the Department of Corrections.

The sufficiency of the evidence is not challenged. The record does show that on September 9, 1971, the 15 year old appellant, a student at Dunbar High School in Lubbock, was confronted by the deceased, Willie Collier, another student, who demanded a cigarette, searched the appellant's pockets, and made implied threats. Later, in the gymnasium the deceased again approached the appellant, struck him with a box opener, causing appellant's arm to bleed, and made threats to kill him.

Appellant, then in company with Jerry Rogers and John Tue, went to his home during the lunch period where he obtained a pistol. After lunch, the appellant returned to the school and during the afternoon approached the deceased in the hallway and shot him with the pistol, causing his death.

At the outset appellant contends his constitutional right of confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 10, Vernon's Ann.St., of the State Constitution was violated when the trial court permitted, over objection, the testimony of Tue and Rogers given at a prior waiver of jurisdiction hearing in juvenile court conducted under Article 2338--1, Secs. 6 and 13, Vernon's Ann.Civ.St. ¹

If the witness has once testified in a case, on a preliminary hearing or on a former trial, and the accused was present and had the opportunity to cross-examine the witness, and such witness has since died, or resides out of the State, or has removed beyond the limits of the State, or cannot attend the trial by reason of age or bodily infirmity, or has been prevented from attending court through the act or agency of the other party, his testimony may be reproduced in a subsequent trial of the same case if the proper predicate be laid for its admission. See Article 39.01, Vernon's Ann.C.C.P.; 1 Branch's Ann.P.C., 2d ed., Sec. 98, p. 110. To be admissible it must be shown that the witness' testimony at the former trial or hearing was given under oath, that it was competent, that the accused was present and had adequate opportunity to cross-examine him through counsel, that the accused was the defendant at the former trial or hearing upon the same charge. See 24 Tex.Jur.2d, Sec. 698, p. 337; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Such predicate must be clearly and satisfactorily established before such testimony can be reproduced. 1 Branch's Ann.P.C., 2d ed., Sec. 99, p. 112.

In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the Supreme Court noted that this exception to the confrontation requirement 'has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.'

Where the State seeks to reproduce testimony of an absent witness given at a prior hearing, it has the burden of establishing an exception to the right of confrontation. See Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1969); Cumpston v. State, 155 Tex.Cr.R. 385, 235 S.W.2d 446 (Tex.Cr.App.1951).

Recognizing the traditional exception to the confrontation requirement where a witness is unavailable and has given testimony in a previous judicial proceeding against the same defendant which was subject to cross-examination, the Supreme Court in Barber, supra, nevertheless held that 'a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.'

Appellant contends that the State failed to lay the proper predicate for the introduction of such evidence by failing to show that the witnesses Tue and Rogers were unavailable and that their return to the jurisdiction of the court was indefinite. The State did offer testimony that the witnesses were in the United States Marine Corps, Rogers being in North Carolina and Tue being aboard ship off the coast of Vietnam. Appellant urges that this did not reflect their return was indefinite. Relying upon Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), he further contends the State failed to make a good faith effort to secure attendance of the witnesses and did not fully comply with the Uniform Act to secure attendance of witnesses from without the State in criminal cases. See Article 24.28, Vernon's Ann.C.C.P. The district attorney did testify he had forwarded subpoenaes to the commanding officers of the witnesses and was informed the Marine Corps would not have the prospecitve witnesses honor subpoenaes until the State advanced funds for travel, and, apparently relying upon some Attorney General's opinions, related there was no method by which money could be so advanced by the State.

Further, appellant charges that the State failed to show the appellant was a defendant on the same charge at the prior juvenile hearing on waiver of jurisdiction, and that this was also an essential part of the necessary predicate. He further contends that the State failed to show that he had an adequate opportunity at the juvenile court hearing to cross-examine the witnesses relative to the murder charge, as the purpose of the hearing was the issue of jurisdiction.

We need not discuss in detail each of appellant's contentions that the proper predicate was not laid for the reproduction of the witnesses' testimony, for we conclude that the error, if any, was harmless error beyond a reasonable doubt under Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

This was not a circumstantial evidence case. A number of witnesses described the events just prior to and after the shooting. Several were eyewitnesses. Tue and Rogers were not the only incriminating witnesses for the prosecution. The fact that the appellant went home, got a pistol, ate lunch at a hamburger stand, returned to school and shot Collier as Collier was backing away from him was not in dispute since the appellant testified and corroborated in essence the missing witnesses' testimony.

The 'untainted' evidence provided overwhelming support for the conviction so that we may declare beyond a reasonable doubt that the error, if any, was harmless. See Whitehead v. State, supra.

Next, appellant contends that the court's charge improperly limited the consideration 'that the jury could give to the condition of the Defendant's mind at the time of the killing.'

Appellant notes the testimony of a psychologist who testified that an examination seven months prior to the alleged offense showed him to be 'a very scared and very frightened child' of 15 years who was emotionally immature and who, because of his size, was expected to act older and more mature.

Despite the timely presented objections to the middle paragraph below, the court charged the jury in part as follows at the guilt-innocence stage of the bifurcated trial:

'If you should find that the defendant was guilty of murder but you have a reasonable doubt as to whether the defendant, in committing the offense, if he did, was prompted by malice, then you should resolve that doubt in defendant's favor, and in such case you can find the defendant guilt of murder without malice aforethought.

'In this connection, if you find from the evidence beyond a reasonable doubt that the defendant is guilty of murder, then you may consider the condition of defendant's mind at the time of the killing, if any, and, as going to show the condition of mind, you may take into consideration all the relevant facts and circumstances surrounding the killing, if any, and the previous relationship existing between the defendant and the deceased, if any, together with all relevant facts and circumstances in evidence.

'If you have a reasonable doubt as to whether the defendant is guilty of murder at all, whether with or without malice aforethought, then you will find the defendant not guilty.'

The appellant argues that 'the charge in question literally instructed the jury that if they found Defendant guilty beyond a reasonable doubt of murder, they could Then consider the condition of the Defendant's mind at the time of the killing. This could mean but one thing to the jury and this that they could consider the condition of his mind in determining whether the murder was with or without malice. This, of course, effectively denied any consideration by the jury of the condition of the Defendant's mind in relation to such issues as intent, premeditation and self defense. Certainly this part of the charge is calculated to mislead the jury.'

Both the State and the appellant concede that the trial court was attempting to charge under the provisions of Article 1257a, Vernon's Ann.P.C. 1925, although punishment was not an issue at the guilt or innocence stage of the trial.

Article 1257a, supra, reads in part as follows:

'In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, Which may be considered by the jury in determining the...