Coffey v. State

• Decision Date: 17 December 1987
• Docket Number: No. 01-86-00918-CR,01-86-00918-CR
• Parties: Raymond Edward COFFEY, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 235

744 S.W.2d 235

Raymond Edward COFFEY, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-00918-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 17, 1987.

Ken J. McLean, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Cathleen C. Herasimchuk, Chuck Rosenthal, Harris County Asst. Dist. Attys., Houston, for appellee.

Before WARREN, COHEN and DUNN, JJ.

OPINION

WARREN, Justice.

A jury found appellant guilty of the felony offense of injury to a child, and assessed punishment at 50 years confinement and a $10,000 fine.

The evidence shows that Christopher Kalmbach, the 2 1/2 year old son of Patty Kalmbach, died on May 7, 1986, from suffocation caused by his lungs being filled with black pepper.

The appellant lived with Patty Kalmbach and Christopher in a trailer house and frequently punished Christopher by forcing him to ingest black pepper, and by spanking him with a homemade paddle.

On May 7, 1986, at about 8:30 p.m., appellant carried the body of Christopher into a Houston hospital. Dr. Pin Lamb testified that when Christopher arrived in the emergency room, he was not breathing; his mouth, trachea, and lungs were filled with black pepper. The child's entire body was covered with bruises, and he had a large burn wound on one arm. Attempts to intubate the child failed, and he died of aerial obstruction caused by the clots and clumps of pepper in his throat and lungs. Four witnesses testified that the child could not have ingested the pepper by himself.

Appellant had lived with Christopher's mother, Patty Kalmbach, for 3-4 months. He told a nurse at the hospital that Christopher must have gotten the pepper shaker from the kitchen, and that he (appellant) had found the child lying on the bedroom floor. He also told her that the bruises had been caused by rough play with neighborhood kids.

Nurse Fuqua testified that as soon as she told appellant that Christopher was dead, he ran out of the hospital with Patty Kalmbach following, screaming at him.

Sergeant Osterberg arrived at the hospital at 9:25 p.m. to investigate the death. He testified outside the presence of the jury that Patty Kalmbach told him that appellant was responsible for her child's death. She told him that she was in the kitchen while appellant was in the bedroom with Christopher, and she heard appellant tell Christopher to open his mouth. When she went to the bedroom, Christopher was unconscious. Sergeant Osterberg ordered a warrantless arrest of appellant between 10:15 and 10:45 p.m. He testified that he authorized the arrest based upon Ms. Kalmbach's statements, and upon the fact that someone told him that appellant had left the hospital.

Ms. Kalmbach signed a voluntary consent to search her trailer. A pepper shaker without a lid was found on the toilet tank with a few grains of pepper remaining in it. The pepper lid was found on the kitchen counter. A pallet was found on the floor of the bedroom. Lying next to the pallet was a homemade wooden paddle, the size and shape of which matched some of the bruises on Christopher's body.

Appellant was arrested at 11:00 p.m. when he reappeared at the trailer park. He was taken to Houston police headquarters. At 1:15 a.m., appellant gave a statement to Officer Waltmon. In his statement, he admitted the following: he whipped Christopher so that Christopher would listen to him; on that day, he gave Christopher "a couple of whippings" with the homemade paddle; he told Christopher to "get his damn ass in the bedroom," and Christopher repeated the word "ass"; he sent Christopher to his room and then got the pepper shaker and set it on the bedroom floor; he returned a few minutes later and found Christopher "half passed out" on the floor, and he called for Patty; the reason he got the pepper shaker was because Christopher said "ass"; and he put pepper in the child's mouth every time the child cursed.

Patty Kalmbach refused to testify at trial. Another witness, Shirley Arnoot, testified that she saw appellant put pepper on the child's tongue on one previous occasion.

In 11 points of error, appellant claims:

(1) that the court erred in allowing the State to proffer Patty Kalmbach, a separately tried co-defendant, to testify, knowing that she intended to invoke her fifth amendment privilege against self incrimination;

(2) that the trial court, over appellant's objection, allowed the prosecutor to make impermissible jury arguments;

(3) that the court erroneously admitted appellant's written statement into evidence because the statement was the fruit of an illegal arrest;

(4) that the evidence is insufficient to show that appellant poured pepper down the child's throat; and

(5) that the court erred in admitting photographs showing the child's physical condition at the time of his death.

Appellant's first three points of error allege that the trial court erred in allowing the State to call Patty Ann Kalmbach, a co-defendant, to the stand three times, knowing that she intended to invoke the fifth amendment notwithstanding a grant of use immunity. Appellant contends that requiring Patty Kalmbach to refuse to testify three times in the presence of the jury created an improper inference of guilt that was prejudicial to appellant.

Appellant relies heavily on authority holding that it is improper for either side to attempt to influence the jury by calling a witness who it knows will invoke the fifth amendment. Mathis v. State, 469 S.W.2d 796 (Tex.Crim.App.1971); Washburn v. State, 299 S.W.2d 706 (Tex.Crim.App.1957); United States v. Maloney, 262 F.2d 535 (2d Cir.1959). However, it is a critical distinction that all of those cases involved a witness who actually invoked a valid fifth amendment privilege.

In this case, Patty Kalmbach had no valid fifth amendment privilege against self-incrimination. The trial judge granted her testimonial immunity. A grant of testimonial immunity substitutes for the fifth amendment privilege. Ullman v. United States, 350 U.S. 422, 437, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956). If granted, immunity displaces the dangers of self-incrimination and eliminates the fifth amendment as a ground for refusing to testify. In re Grand Jury Proceedings, 643 F.2d 226, 228 (5th Cir.1981).

The only case appellant cites that involved a witness with no valid fifth amendment privilege is Vargas v. State, 442 S.W.2d 686, 687 (Tex.Crim.App.1969). The Vargas court held that it was error to call a convicted co-indictee to the stand knowing that he would invoke his privilege against self-incrimination. The court did not address the fact that the witness had no valid fifth amendment privilege to invoke.

However, in Franco v. State, 491 S.W.2d 890 (Tex.Crim.App.1973), the defense wanted to call a witness who had previously pleaded guilty to an offense arising out of the same incident about which she was called to testify. The trial court permitted the witness to invoke the fifth amendment, and she was dismissed. The Court of Criminal Appeals held that because the witness had already pleaded guilty to the offense, she had no privilege to claim; therefore, the trial court was in error in permitting her to claim the fifth amendment.

In United States v. Beechum, 582 F.2d 898 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), the Fifth Circuit made it clear that a witness who waives his fifth amendment privilege is not entitled to the same protection as a witness with a valid fifth amendment privilege. In Beechum, the defendant testified at trial, and so waived his privilege. Nevertheless, the trial court allowed him to invoke the fifth amendment in response to Government questioning. Beechum then complained on appeal that he was prejudiced by having to assert the amendment repeatedly. The court responded:

Any prejudice deriving from the invocation of the privilege is therefore attributable to Beechum's decision to testify. Indeed, Beechum can hardly complain; if the court had ruled correctly and not allowed him to invoke the fifth amendment he could have refused to respond only on peril of contempt. Moreover, in that instance the Government would have been entitled to comment on Beechum's refusal to answer, notwithstanding the prohibition on such comment where the privilege is properly invoked.

582 F.2d 909. (emphasis added) (citations omitted).

In the case at bar, Patty Kalmbach no longer had a fifth amendment privilege after she was granted immunity. The trial judge informed her of this and held her in contempt when she refused to testify. It was not error for the trial court to permit the State on three occasions to call her to the stand.

Points of error 1, 2, and 3 are overruled.

Appellant's fourth point of error asserts that the trial court erred in overruling his objection to the prosecutor's closing argument regarding appellant's demeanor.

An objection raised on appeal will not be considered if it varies from the objection made at trial. Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App.1983). Appellant's objection at trial was that the argument was a comment on appellant's failure to testify. His ground of error on appeal is that the argument went outside of the record. The Court of Criminal Appeals found this same mismatching of objections to be insufficient to preserve error in Bouchillon v. State, 540 S.W.2d 319, 322 (Tex.Crim.App.1976). Appellant has failed to preserve error for review.

Appellant's fourth point of error is overruled.

Appellant's fifth point of error complains of the prosecutor's argument during the punishment phase of the trial that the appellant produced no reputation witnesses.

Appellant objected at trial that the argument was a comment on the appellant's failure to testify. He complains on appeal that the argument was a comment on the appellant's failure to produce witnesses. The objection does not comport with the complaint on appeal; therefore, any error is waived. Euziere v....