Ethington v. State

• Decision Date: 06 November 1991
• Docket Number: No. 736-88,736-88
• Citation: 819 S.W.2d 854
• Parties: Forest Leon ETHINGTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 854

819 S.W.2d 854

Forest Leon ETHINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 736-88.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 6, 1991.

Rehearing Denied Dec. 18, 1991.

Douglas D. Mulder, John H. Hagler, Dallas, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall and David K. Chapman, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant, Forest Leon Ethington, ¹ was convicted by a jury of the offense of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The jury assessed punishment at life in the Texas Department of Corrections. ² The Fort Worth Court of Appeals reversed and remanded in a published opinion, Ethington v. State, 750 S.W.2d 14 (Tex.App.--Ft. Worth 1988). We granted the State's petition for discretionary review to determine whether the Court of Appeals erred in holding evidence of an extraneous offense was improperly admitted during the trial. After further review, we will reverse the judgment of the court below.

Although the sufficiency of the evidence is not challenged on appeal, a discussion of the facts is helpful. Robert Rosberg, co-owner of the Artex Coin and Stamp Shop located in Pantego, a small community near Arlington in Tarrant County, was robbed and shot execution style on March 27, 1985 near regular closing time. One of the participants, Michael Heston, testified appellant planned the crime and recruited Heston and another man named Michael Turnbough to commit the robbery. Turnbough was to be the trigger man, and the plan was for Turnbough and Heston to enter the shop and ask to see some coins. Turnbough would take Rosberg at gunpoint to the back of the shop and bind his hands and feet to a table with plastic strips known as "flexcuffs" while Heston emptied the safes. Turnbough would then eliminate the only witness to the crime by shooting Rosberg in the head three times with a .22 caliber Beretta automatic pistol fitted with a homemade silencer belonging to appellant. While this was being carried out, Heston would unload the safes and carry the stolen property to his car. Appellant would act as lookout from across the street, listening to a police scanner radio tuned to the Pantego Police Department frequency for any alarms so as to warn his two associates in the shop. The robbery and murder were completed according to the plan. The three perpetrators met immediately after the robbery and returned to appellant's home.

Two months after the robbery, evidence from the Rosberg robbery was discovered offered for sale on the dealer table of appellant and his wife, Kathy, at a coin show for dealers and collectors held in Long Beach, California. The items recovered included some of Rosberg's personal collection, most of which was still contained in plastic envelopes marked with Rosberg's handwriting and dealer code number. Appellant gave statements to local police and to the F.B.I. saying a stranger had sold the merchandise to him at a previous coin show.

Appellant and his wife returned to their home in Texas and appellant was voluntarily interviewed by the Pantego Police Department regarding his possession of the stolen currency and any knowledge he had regarding the Rosberg murder. While released on bond for another unrelated offense, appellant traveled to California where he was apprehended at the home of Dennis Clifton by the F.B.I. on August 11, 1985 with more evidence associated with the Rosberg robbery and murder in his possession. This evidence included a .25 caliber pistol, diagrams for making silencers, pieces of a silencer, wanted posters for Michael Turnbough, newspaper clippings from Texas newspapers regarding the Rosberg murder, an expired California driver's license for Joe Collins, a passport for Michael Turnbough and a Texas driver's license for Michael Turnbough. Appellant was subsequently brought back to Texas, arrested and charged with the March 27, 1985 armed robbery of Robert Rosberg.

The error appellant complained of on direct appeal was the admission into evidence of a statement regarding an armored truck robbery committed August 5, 1985 in Richardson, Texas, as an inadmissible extraneous offense allegedly committed by appellant while out on bond for another unrelated offense. The evidence complained of came in during the direct testimony of prosecution witness Mark Scott. Each of the grounds for review we have granted relate to the propriety of allowing Scott to testify regarding an extraneous offense.

The State questioned Scott on direct about the circumstances surrounding his meeting appellant in California at the home of Dennis Clifton, a friend of the appellant. Scott testified he traveled from California to Texas with the appellant and Michael Turnbough in the appellant's motor home. Scott stated they stopped several times along the way to look at coin shops. Appellant and Turnbough described to Scott in detail the "proper" way to rob a coin shop. The Pantego robbery was mentioned to Scott by both men. Scott told the jury when the three men arrived in Texas, he watched appellant build and test fire a silencer on a .22 caliber short Beretta pistol. He also observed other weapons, including a .25 caliber automatic pistol with a Velcro handle. He testified to the frequent use of police scanner radios by the appellant. Scott testified that following his arrest for an aggravated robbery and kidnapping, Turnbough contacted him in the Dallas County Jail and told him to call appellant, which he did. Appellant told him not to talk to the District Attorney's office because the appellant had been caught with some stolen currency at a coin show in Long Beach, California.

On cross-examination, the defense suggested Scott fabricated his story in order to make a favorable deal in exchange for a guilty plea on his conviction. Moreover, the defense pointed out Scott was the only person charged and convicted of the armored truck robbery, implying appellant had not been charged with that offense. Defense counsel questioned Scott in great detail regarding a written statement he made to an investigator while in the Dallas County Jail following his arrest for the August 1985 crime. The statement was marked as Defense Exhibit Number 5. Scott was asked to read it to the jury as follows:

My name is Mark Christopher Scott. I am 24 years of age. I have eleven years of education and read and write and understand the English language. I am giving this statement to Detective Sergeant McBroom of my own free will and have not been promised anything in return. I am currently in the Dallas County Jail on charges from Richardson P.D. I met Hap Kelly approximately three years ago in Sylmar, California through Dennis Clifton around the end of June 1985. He approached me about doing a job with himself and Mike Turnbough. I said I would help him around July 1st of 1985. Hap, Mike and myself started from California to Texas in Hap's motor home. It took us about four days traveling to get to Texas. During the trip we had time to talk, and it was during this four day period Hap, Mike and myself discussed a job that Mike had done in Pantego. Hap said that he was caught with some dollar bills in Long Beach that were from a Pantego job. He said to his wife not to put the dollar bills on the table. When she did place them on the table, they were ID'd. That's when he was placed under arrest and bonded out. I think Hap said it was a cap job in Pantego because he knew the man. Hap and Mike used to talk about the Pantego job and how it was a cap job. When they did a job Mike would usually go in and Hap would wait in the car. They would talk about jobs where Mike came out with blood on his face. I had no reason to doubt Mike because he is capable of doing this. When we got to Texas we began on another job. Nothing more was said about Pantego. (emphasis added)

Defense counsel inquired why Scott did not question appellant and Mike Turnbough more about the Pantego robbery. Scott answered, "[b]ecause I was coming to Texas to do another thing." Once again, when questioned further about what Scott heard appellant and Turnbough say about the Pantego "job," Scott answered that everything he knew was in the written statement and "once we got to Texas, there wasn't much more said about the Pantego job because we were out there doing another thing." This was apparently an attempt to lay the predicate for possible impeachment of Scott's credibility.

On redirect examination, the State went into the question of the same written statement. The State began by showing the witness what was marked as Defendant's Exhibit No. 5, Mark Scott's written statement. Scott identified it as his statement in his own handwriting and the State offered it into evidence. The written statement was admitted after defense counsel told the court he had no objection. The State asked Scott for information about the other job he came to Texas to do with appellant and Turnbough. The defense objected to the question by stating, "Judge, that's extraneous. We object to it." The objection was overruled. Scott told the jury the job was to be an armored truck robbery. At this point, the prosecutor asked the witness whether the job was accomplished, by whom, and further details of the offense were elicited. The defense did not object to the detailed testimony after the initial objection to naming the "job" Scott, Ethington and Turnbough "came to Texas to do." ³

The State asserts in its third ground for review, the Court of Appeals erred by finding defense counsel made a sufficient objection to Mark Scott's extraneous offense testimony, thus properly preserving the evidentiary error for appellate review. The State further contends the Court of Appeals erred by relying on a civil standard for properly preserving error instead of the standard used in criminal cases. ⁴

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