Dedrick v. State

• Citation: 623 S.W.2d 332
• Decision Date: 01 April 1981
• Docket Number: No. 1,No. 60184,60184,1
• Parties: Freddie Lee DEDRICK, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 332

623 S.W.2d 332

Freddie Lee DEDRICK, Appellant, v. The STATE of Texas, Appellee.

No. 60184.

Court of Criminal Appeals of Texas, Panel No. 1.

April 1, 1981.

Rehearing Denied En Banc Nov. 25, 1981.

George E. Gilkerson and John J. C. O'Shea, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., Cindy L. Miller, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

John T. Montford, Dist. Atty., Jim B. Darnell, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State on rehearing.

Before ONION, P. J., and ROBERTS and ODOM, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at twenty years.

In his first ground of error appellant complains of the admission of the testimony of certain witnesses. He contends that part of the testimony of these witnesses should have been excluded because that testimony had previously been rejected by the jury at a prior trial for a different offense, at which appellant was acquitted. Cf. Stuart v. State, Tex.Cr.App., 561 S.W.2d 181. He argues that admission of their testimony violated the collateral estoppel doctrine, citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

When the State called the first witness to which objection is now raised, the jury was removed and extensive objections were made:

"DEFENDANT'S MOTION TO EXCLUDE TESTIMONY

"THE COURT: All right. State all your objections on your bill.

"MR. O'SHEA: All right. Comes now the Defendant, Freddie Lee Dedrick, Defendant in the above entitled and numbered cause, and files this his objection to the proposed testimony of Glenda Wright, Lt. Ray Huffman, Sgt. Park, George White, Joe Nevarez, Teddy Daniels, and Glenn Johnson, Harris Clinton-

"THE COURT: Clanton.

"MR. O'SHEA: -James Ashmore, Don Funk, and Glenn Edwards, as it relates to the gun which has been marked as State's Exhibit 9, but which has not been introduced as yet.

"In connection with this objection, Defendant predicates his objection to the testimony as such testimony conforms to the testimony heretofore made, heretofore given in the cause of 17,603, styled Freddie Lee Dedrick vs. -State of Texas vs. Freddie Lee Dedrick, wherein Freddie Lee Dedrick is charged with an alleged armed robbery, or aggravated robbery, occurring on or about January 17th, 1977, from the material possession and control of property of Don Funk; in that such testimony, that is going to be given by these people, including Glenda Wright, the present witness on the stand, will be a presentation before this jury as to identity, and as to the commission of the alleged crime, as set forth in Cause No. 17,603, styled State of Texas vs. Freddie Lee Dedrick, in which cause, trial being heretofore had on such cause on or about August 3rd and 4th, 1977, with the Defendant being acquitted of the offense that occurred on or about such date; being acquitted of the offense by a jury of his peers.

"In this regard, Defendant would show that the offenses charged in Causes No. 17,602 and 17,603, alleged armed robbery-aggravated robberies, occurring on or about-all right, that as to Cause No. 17,602 (sic) alleging aggravated robbery occurring on or about January 15th, which is the matter under consideration today; and 17,602, alleging that an aggravated robbery occurred on or about January 17th, 1977, and in this regard, such indictments were available, and were returned on the same date, that being February 9th, 1977, and at such time, the prosecution had available to them the right to try either case without a bar being raised as to the adjudication of not guilty.

"The Defendant would submit, most respectfully, that as to the identity of the gun, the use of the gun, in connection with this offense, of which he is on trial this date for, as set forth in Cause No. 17,603; will be an attempt to hold him responsible for his conduct, as set forth in Cause No. 17,602, and it is an attempt for a jury to pass upon the validity of the operative fact, or facts, in such cause, 17,602, once again, which destroys the efficacy, the legitimacy, and the right and propriety of the constitutional guarantee against being tried for the same offense twice.

"Defendant would state, most respectfully, that the same evidence was considered by the jury in Cause 17,602, when trial was had before this Honorable Court on August 3rd and 4th of 1977; and to rehash it at this time is to do violence, and to deny this Defendant his rights not to be tried twice for the same offense, as guaranteed under the Federal and State Constitutions, and the operative laws, and statute laws of the State of Texas; all of which laws we call upon as prohibiting the prosecution in this cause.

"Defendant would say, most respectfully, in connection with this, and in support of such testimony, as offered, that will be done, we call upon- we ask the Court to grant us, if this case is appealed, that the Court include, and that the Court take judicial knowledge of the previous record of the trial and the testimony elicited, during the course of the trial, in which this Honorable Court, the same person, and the Presiding Judge, heard this trial, and that the Court, in this matter, for the purpose of this, take judicial notice of the import, the content, and the extent of the testimony heretofore given by the people that are expected to be called in this case, and that were previously called in the preceding cause of 17,602, back in August of last year, and that the record stand for itself; that it is, once again, an attempt on the part of the State to hold this man accountable for the same course of conduct, the same set of events, of which he has been absolved and held guiltless by a jury of his peers, after a due and regular trial, with no attack upon the jurisdiction of such trial, or a jury, in rendering a fair and impartial verdict upon the facts in that case.

"The Defendant would say, most respectfully, that the testimony of these witnesses, which I will not go into in detail, due to the lengthiness, unduly, for the purpose of this objection, will be the same import, the same nature and extent, for the purpose of identity of this gun for the purpose of collaterally asking this jury to make a different finding of fact, or a different judgment upon an operative fact that was necessarily found not to be true by a preceding jury.

"We predicate this motion of objection to her testimony upon the fact that-and the other witnesses that we have named, upon the fact that such testimony will be directly-it will be directly-it will directly cause a jury-or give the jury the opportunity to pass a different judgment upon the operative facts upon which the Defendant was found not guilty in the preceding trial, which is Cause No. 17,602, styled the State of Texas vs. Freddie Lee Dedrick, wherein he was charged with aggravated robbery occurring on or about January 17th, 1977, from the person and ownership of Don Funk.

"We wish to make known this objection in detail, and have such objection and bill of exception, if the Court should overrule our objection to this testimony, and we ask that we have a running bill, predicated upon the denial of due process of law, denial of effective assistance of counsel, whereby counsel-effective assistance of having adjudicated it once, and the Defendant has been denied the efficacy of such assistance back in that trial, by having to be tried again, and, also, based on former jeopardy, and denial, making the Defendant make a choice as to the extent of cross examination as to the witnesses, as to whether we open up the fact that there was even an accusation of a former offense being lodged against the Defendant, of which he is now absolved, and of this, we move, most respectfully, and object to the testimony of all these witnesses on those facts.

"THE COURT: Your objection will be overruled.

"MR. O'SHEA: Note our exception.

"May we have a running bill on those grounds as to all these witnesses that we stated without objection on each witness; on those grounds we have stated here, Your Honor?

"THE COURT: To the testimony, as it relates to those matters only?

"MR. O'SHEA: Yeah. Only as to what was adjudicated and heard in the prior trial, that is all, we just want that objection, Your Honor.

"THE COURT: As to anything that the State offers, that-but any other matters that you feel you must object to, you must do so.

"MR. O'SHEA: Yes, sir. I will. I will.

"THE COURT: All right.

"MR. O'SHEA: Yes, sir. Thank you for giving us that bill, Your Honor."

It is necessary to briefly summarize the controlling facts from the two trials. Appellant was first tried for the aggravated robbery of Don Funk allegedly committed on January 17, 1977. Funk positively identified appellant as the individual who robbed him on the date alleged, and testified that in the course of the robbery he was able to obtain control of the pistol used by appellant. The defense was based on alibi evidence. The jury rejected Funk's testimony and acquitted appellant of the charge.

The instant appeal is from a conviction for the aggravated robbery of Darlene Caffey allegedly committed on January 15, 1977. Caffey was able to testify that appellant resembled the person who committed the robbery, but was unable to make a positive identification of him in court as the robber. To support its case, the State called Funk to testify that he obtained a pistol from appellant on January 17. He identified the gun, which was introduced into evidence. Other evidence showed a piece of wood had been chipped from the pistol's handle, and a chip of wood found at the scene of the Caffey robbery matched the place for the missing chip from the pistol. This evidence tended to connect appellant with the Caffey robbery. Yet the identification testimony linking appellant to the pistol is also precisely that evidence which the jury in...