Foster v. State

• Decision Date: 26 July 2000
• Docket Number: No. 10-98-247-CR,10-98-247-CR
• Citation: Foster v. State, 25 S.W.3d 792 (Tex. App. 2000)
• Parties: (Tex.App.-Waco 2000) J. C. FOSTER, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 792

25 S.W.3d 792 (Tex.App.-Waco 2000)

J. C. FOSTER, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-98-247-CR

IN THE TENTH COURT OF APPEALS

July 26, 2000

From the 54th District Court McLennan County, Texas Trial Court # 97-946-C

[Copyrighted Material Omitted]

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

O P I N I O N

TOM GRAY, Justice.

Two teenagers, aged 16 and 17, were tired of not having any money. They decided the way to get it was to rob someone. Having set a goal, they took steps to accomplish it. The following day, during the course of committing a robbery, the 17 year old, J. C. Foster, murdered Andrea Cross. He was indicted, tried and convicted of capital murder. Because the death penalty was waived by the State, he was sentenced to life in prison. He brings seven complaints about the validity of the conviction. We affirm the trial court's judgment.

Admissibility of Co-Defendant's Plea

In his first issue, Foster complains that the trial court erred in allowing the State to introduce evidence that Alphonso Leatch, the 16 year old juvenile, pled guilty to capital murder. Foster argues that the disposition of Leatch's case is inadmissible because there was no proper purpose for its introduction and because it was being used as proof of Foster's guilt. At trial, the following question, answer and objection occurred:

State:Why are you currently at [the Texas Youth Commission]?

Leatch:I pled guilty to capital murder.

Defense:Objection. Relevance.

Court:Overruled.

After the above testimony was introduced, Leatch testified that he was serving a 40 year determinate sentence and had completed the capital offender's program. Leatch then testified that he and Foster planned robbing someone the night before the murder "for which [he was] currently..." in the custody of the Texas Youth Commission. Because the same evidence objected to was subsequently admitted without objection, any alleged error, if error at all, was rendered harmless. Purtell v. State, 761 S.W.2d 360, 368 (Tex. Crim. App. 1988); Gaines v. State, 789 S.W.2d 926, 929 (Tex. App. Dallas 1990, no pet.). Foster's first issue is overruled.

Impeachment by Juvenile Adjudication

In his second issue, Foster contends that the trial court erred in limiting his cross- examination of Leatch concerning his prior juvenile adjudication for the offense of aggravated robbery. The State argues that Rule 609(d) of the Rules of Evidence prohibits the introduction of juvenile adjudications for impeachment purposes. Tex. R. Evid. 609(d). Based on the facts in the record before us, we agree with the State.

Testimony

Leatch testified that he began taking medication to help him sleep after he was released from the Texas Youth Commission in March of 1997. When Foster's attorney asked why he was in the Texas Youth Commission's custody, the State objected, citing improper impeachment as its reason. The objection was sustained. Outside the presence of the jury, Foster's attorney argued to the trial court that, under the Sixth Amendment of the United States' Constitution, he was entitled to cross-examine Leatch regarding his prior adjudication. The State responded that juvenile adjudications are not admissible for impeachment purposes. Once again, the trial court sustained the State's objection.

Foster was then permitted to perfect a bill of exception outside the presence of the jury. Leatch was asked why he had previously been in the custody of the Texas Youth Commission. He responded that he had been adjudicated for aggravated robbery when he was about 13 or 14 years of age. Leatch testified that the adjudication for aggravated robbery was the only adjudication on his record other than the recent adjudication for capital murder. Leatch also testified that he had no pending charges against him. At the conclusion of this testimony, Foster again urged the trial court to allow him to cross-examine Leatch regarding the prior adjudication. The trial court again sustained the State's objection.

Impeachment With A Juvenile Adjudication

Generally, a witness may be impeached by proof of felony convictions or misdemeanor convictions involving moral turpitude which are final and not too remote in time. Tex. R. Evid. 609; Rivas v. State, 501 S.W.2d 918, 919 (Tex. Crim. App. 1973). However, juvenile adjudications do not fall under this general, permissive category of convictions used for impeachment. First, juvenile adjudications are not convictions. Tex. Fam. Code Ann. § 51.13(a) (Vernon Supp. 2000). Second, evidence of a juvenile adjudication, outside the realm of a juvenile proceeding, is not admissible for impeachment unless required by the Constitution of the United States or Texas. Tex. R. Evid. 609(d).

Of course, the constitutional right to cross-examination, in a limited sense, may require a juvenile adjudication to be admitted. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The Court of Criminal Appeals has held that a pending juvenile charge may be admissible on cross-examination to show the motive or bias of the witness to testify favorably for the State. Carmona v. State, 698 S.W.2d 100, 102 (Tex. Crim. App. 1985)(emphasis added); Harris v. State, 642 S.W.2d 471, 476 (Tex. Crim. App. 1982); see also Carroll v. State, 916 S.W.2d 494, 499-500 (Tex. Crim. App. 1996). The U.S. Supreme Court has held that a defendant is permitted to cross-examine a crucial witness regarding his juvenile record for the limited purpose of showing bias where the witness was on probation for the juvenile crime while assisting the police and testifying in court. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). But, it is clear that defendants are not permitted to cross-examine a witness regarding prior juvenile adjudications for general character impeachment purposes. Id. at 1112 (Stewart, J., concurring); Warren v. State, 514 S.W.2d 458, 465 (Tex. Crim. App. 1974); Gilmore v. State, 871 S.W.2d 848, 851 (Tex. App. Houston [14th Dist.] 1994, no pet.).

Application

Foster relies heavily on the U.S. Supreme Court decision in Davis to argue that he should have been allowed to cross-examine Leatch about his prior adjudication for aggravated robbery. Based on the record before us, Davis does not apply. The "pending charge" exception to Rule 609 is not available to Foster either. The record does not show that Leatch had any charges pending against him. Foster made no showing that because of his previous adjudication, Leatch would have some bias or prejudice to testify favorably for the State. It appears from the record that the only reason for the inquiry into Leatch's prior adjudication was for general impeachment purposes. Thus, the trial court did not err in refusing to allow Foster to question Leatch about his prior juvenile adjudication. His second issue is overruled.

The Law of Parties

In his third issue, Foster contends that an instruction on the law of parties should not have been included in the charge to the jury because the evidence does not support the instruction. Over Foster's objection, the trial court included a "parties" instruction. The application paragraph in the charge which pertains to the party theory is as follows:

"Now if you find from the evidence beyond a reasonable doubt that on or about the 3rd day of September, 1997, in McLennan County, Texas, Alphonso Leatch did intentionally or knowingly commit the offense of robbery of an individual, Andrea Cross and that the defendant, J. C. Foster then and there knew of the intent, if any, of said Alphonso Leatch to rob the said Andrea Cross, and the defendant acted with intent to promote or assist the commission of the offense by Alphonso Leatch by encouraging, directing, aiding, or attempting to aid Alphonso Leatch to commit the offense of Robbery of Andrea Cross, and you further find and believe from the evidence beyond a reasonable doubt that the [d]efendant, J. C. Foster, did then and there intentionally cause the death of Andrea Cross, by shooting her with a firearm, then you will find the defendant, J. C. Foster, guilty of the offense of Capital murder as charged in the indictment."

Responsibility As A Party

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 1994). A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2).

A trial court commits error if it submits in the jury charge a theory of liability that is not supported by sufficient evidence. Collier v. State, 999 S.W.2d 779, 797 (Tex. Crim. App. 1999). To determine whether a defendant is a party to the offense, the courts may look to events that occurred before, during and after the commission of the offense. Beardsly v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); Sendejo v. State, 953 S.W.2d 443, 451 (Tex. App. Waco 1997, pet. ref'd). The courts may rely on actions which show an understanding and common design to do a certain act. Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. [Panel Op.] 1982). Participation in an offense may be inferred from the circumstances and need not be shown by direct evidence. Beardsly, 738 S.W.2d at 684; Armstead v. State, 977 S.W.2d 791, 797 (Tex. App. Fort Worth 1998, pet. ref'd).

Evidence

For the purposes of this argument, Foster does not contest that he shot and killed Cross. He contests that he was a party to the robbery offense which elevated the charge to capital murder. The record reflects that on the night before the murder and robbery, Foster and Leatch decided to rob someone to acquire some money. The next day, Leatch met Foster outside Cross's house...