Coleman v. State

• Decision Date: 10 January 1996
• Docket Number: No. 10-94-074-CR,10-94-074-CR
• Citation: 915 S.W.2d 80
• Parties: Lawron COLEMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 80

915 S.W.2d 80

Lawron COLEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 10-94-074-CR.

Court of Appeals of Texas,

Waco.

Jan. 10, 1996.

Order Denying Rehearing Feb. 14, 1996.

Discretionary Review Granted May 22, 1996.

Robert J. Reagan, Doyle Ross Jackson, Dallas, for appellant.

John Vance, Criminal District Attorney, Kimberly Schaefer, Asst. District Attorney, Dallas, Robert Huttash, State's Attorney, Austin, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

VANCE, Justice.

A jury convicted Lawron Coleman of murder and assessed punishment at twenty-five years in prison. TEX.PENAL CODE ANN. § 19.02 (Vernon 1994). He appeals on six points, asserting that the court erred in quashing the subpoenas of two newspaper reporters, in failing to instruct the jury on extraneous offenses during the punishment phase, and in granting judgment on the verdict because the evidence on punishment is factually insufficient. Because the reporters failed to demonstrate a basis for quashing the subpoenas, we will reverse the judgment and remand the cause for another trial.

THE OFFENSE

Coleman is a member of a gang called the Oak Cliff Mafia ("O.C.M."). On Thanksgiving weekend of 1993, Coleman and his brother were walking home when they were approached by a car occupied by members of Los Homeboys ("L.H.B."), a rival gang. ¹ His brother was wounded in the drive-by shooting, although Coleman believed the attack was directed at him. A week later, on November 30, Coleman and fellow gang members were driving around when they saw three individuals waiting at a bus stop. Coleman believed that some of the individuals were members of Los Homeboys. The car circled the bus stop once or twice. Coleman raised a shotgun, shouted, "O.C.M., motherf----s," and fired at the three boys. Sixteen-year-old Victor Alvarez was hit in the chest and died from his wounds.

Coleman's written confession was admitted at trial. It states that he was a passenger in the car when one of the other occupants yelled, "There goes L.H.B.s." Coleman stated, "I got angry hearing L.H.B. and my mind just went blank." He testified at trial that he did not intend to kill anyone; rather, he intended to scare the boys and "let them know how it felt to be afraid." Coleman's defensive theory was that he committed voluntary manslaughter, not murder, because he was acting under the sudden passion of his brother's shooting. The court charged the jury on murder and manslaughter. The jury found Coleman guilty of murder.

QUASHING OF SUBPOENAS

In his first two points, Coleman complains that the court erred in quashing the subpoenas of two newspaper reporters because it based its ruling on a "reporter's privilege" that does not exist and because the action violated his right of compulsory process guaranteed by the federal and state constitutions.

Coleman subpoenaed Nora Lopez and Tracy Everbranch, reporters for The Dallas Morning News. The reporters filed a motion to quash the subpoenas, asserting that they believed Coleman was seeking their testimony regarding the "work and fact-finding" they had done on gang violence in Dallas. Lopez had written an article on the rival gangs approximately six weeks after the shooting of Alvarez. Two later articles had been written regarding a co-defendant.

The motion to quash asserted that, under both the federal and state constitutions, the reporters had a qualified privilege protecting information obtained in the course of news-gathering activities. The reporters argued that they could not be compelled to testify unless Coleman made a showing that: 1) the information is highly material or relevant; 2) it is necessary or critical to the case; and 3) he would not be able to make out a defense without the information because it is not available from another source. The reporters further argued that they did not witness the crime, that any information they have is hearsay, and that they are not experts on gang warfare and violence in Dallas. Thus, they argued, Coleman had not met his burden to overcome their privilege not to testify.

Coleman responded that his entire defense centered on his state of mind and that he had subpoenaed the reporters because "they've done an extensive amount of investigative work concerning the two so-called gangs that we have involved in this." He asserted that the reporters had spoken with witnesses and that they "could enlighten this jury as to the atmosphere out there that could relate back to the state of mind of [Coleman], which is a very critical issue in this case." Coleman introduced into evidence the original newspaper article.

The State argued that Coleman was not seeking first-hand knowledge from the reporters. Rather, he was seeking hearsay, after-the-fact evidence acquired by the reporters. The State further argued that Coleman essentially sought "expert testimony," which the reporters were unwilling to provide, and that the evidence he sought could be gleaned from other available sources.

At the hearing on the motion to quash, the court heard arguments of counsel. The reporters did not testify, nor did they supply affidavits with their motion. The only evidence adduced was the two subpoenas and Lopez' news article. The court granted the motion.

STANDARD OF REVIEW

The court's decision to quash the subpoenas is reviewed for an abuse of discretion. Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex.Crim.App.1987) (citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and Ross v. Estelle, 694 F.2d 1008 (5th Cir.1983)).

REPORTER'S PRIVILEGE

In his first point, Coleman complains that the court erred in quashing the subpoenas of the newspaper reporters because there is no "reporter's privilege" in a criminal trial. ² Branzburg v. Hayes, 408 U.S. 665, 690, 92 S.Ct. 2646, 2661, 33 L.Ed.2d 626 (1972); Ex parte Grothe, 687 S.W.2d 736, 739 (Tex.Crim.App.1984), cert. denied, 474 U.S. 944, 106 S.Ct. 308, 88 L.Ed.2d 286 (1985). The State concedes that there is no special "press privilege" in Texas to excuse members of the media from complying with a subpoena issued in a criminal proceeding. The State also concedes that the reporters had no other competing constitutional right or testimonial privilege which would excuse them from testifying.

Subpoenas were properly requested, issued, and served upon the reporters. TEX.CODE CRIM.PROC.ANN. art. 24.03 (Vernon Supp.1995). ³ The reporters' motion to quash asserted a qualified "reporter's privilege" not to testify. Although the Code of Criminal Procedure makes no provision for quashing subpoenas, the Court of Criminal Appeals has implicitly approved the procedure. ⁴ See Perez v. State, 590 S.W.2d 474, 479 (Tex.Crim.App. [Panel Op.] 1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2157, 64 L.Ed.2d 790 (1980). Thus, a motion to quash is a proper vehicle for a witness to assert, for example, his Fifth Amendment right against self-incrimination. Castillo v. State, 901 S.W.2d 550, 552 (Tex.App.--El Paso 1995, pet. ref'd).

The Court of Criminal Appeals has recently addressed the question of a reporter's privilege in State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex.Crim.App.1994) (orig. proceeding). In McMeans, the state subpoenaed four newsman to appear and give evidence in an "abuse of corpse" proceeding. The newsman filed motions to quash based on a qualified privilege under the federal and state constitutions. Id. at 774. At the hearing on the motion to quash, the assistant district attorney testified that he believed the newsman had heard and videotaped the defendant making incriminating statements regarding the alleged offense. Id. The Court, in rejecting a First Amendment "reporter's privilege" in criminal prosecutions, held: "[N]ewsmen have no constitutional privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution." Id. at 775.

COMPULSORY PROCESS

Coleman's second point asserts that he was denied his fundamental right of compulsory process. An accused has the right of compulsory process for obtaining witnesses on his behalf. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX.CODE CRIM.PROC.ANN. art. 1.05 (Vernon 1977); Rodriguez v. State, 513 S.W.2d 22, 27 (Tex.Crim.App.1974). Coleman argues that he simply needed to follow the proper procedures for application, issuance, and execution of the subpoenas. The State asserts, and we agree, that the Sixth Amendment right to compulsory process is not absolute or inviolate. It further asserts that a court is not required to compel irrelevant or inadmissible testimony.

The Sixth Amendment confers upon a criminal defendant the right "to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor...." U.S. CONST. amend. VI. "It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced." United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 3109, 41 L.Ed.2d 1039 (1974). ⁵

The fundamental importance of the right to compulsory process is discussed in Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967):

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

In Washington, a state procedural statute provided that persons charged as principals, accomplices, or accessories in the same crime could not be witnesses for each other. Id. at 15, 87 S.Ct. at 1921. Washington...