Frison v. State

• Decision Date: 02 November 1971
• Docket Number: Nos. 44154,44155,s. 44154
• Citation: 473 S.W.2d 479
• Parties: Joseph FRISON and Charles Watts, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 479

473 S.W.2d 479

Joseph FRISON and Charles Watts, Appellants, v. The STATE of Texas, Appellee.

Nos. 44154, 44155.

Court of Criminal Appeals of Texas.

Nov. 2, 1971.

Rehearing Denied Dec. 21, 1971 in No. 44155.

Tom Moore, Jr., Waco, for Joseph Frison.

Rollin Khoury, Waco (Court-appointed), for Charles Watts.

Martin D. Eichelberger, Dist. Atty., Frank M. Fitzpatrick, Jr., Kenneth H. Crow and James E. Barlow, Asst. Dist. Attys., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

These appeals arise out of convictions in a joint trial for robbery by firearms. The punishment assessed each appellant was 22 years.

The record reflects that on November 27, 1969, around 9:35 p.m. Jerry Harris, assistant manager of a Seven-Eleven Drive In store, was robbed at gunpoint by three men and approximately $150.00 was taken from him. Harris, who was alone at the time, made a positive in-court identification of the appellant Frison as one of his assailants but was unable to make a positive identification of the appellant Watts.

Both appellants complain that the court erred in permitting State's witness Officer Dell Butler to testify that the complaining witness Harris had identified them in the Bell County Courthouse.

It appears from the argument advanced that appellants rely upon the rule stated in Lyons v. State, Tex.Cr.App., 388 S.W.2d 950, that while a witness who has identified his assailant at the trial may testify that he also identified him while he was in police custody, others may not bolster his unimpeached testimony by corroborating the fact that he did identify him. See also Vines v. State, Tex.Cr.App., 397 S.W.2d 868 (1966); Brown v. State, Tex.Cr.App., 403 S.W.2d 411 (1966); Acker v. State, Tex.Cr.App., 421 S.W.2d 398 (1967); Cf. King v. State, Tex.Cr.App., 402 S.W.2d 746 (1966); Ward v. State, Tex.Cr.App., 427 S.W.2d 876, 883; Beasley v. State, Tex.Cr.App., 428 S.W.2d 317, 319; Casias v. State, Tex.Cr.App., 452 S.W.2d 483, 489 (1970); Montemayor v. State, Tex.Cr.App., 456 S.W.2d 126 (1970); Grant v. State, Tex.Cr.App., 462 S.W.2d 954 (1971).

In the instant case Harris was the State's first witness. He was not questioned about any pretrial identification of either appellant between the time of the alleged robbery and the trial.

Butler, a Waco city detective, testified he had conducted the investigation of the offense charged. He related that on December 10, 1969, he, Harris and Ranger Gunn had gone to the Bell County Courthouse and that he had seen the appellants in the basement of that building and after a conversation with them had arrested them for the instant offense.

Upon objection to the nature of the conversation the jury was removed. In their absence it was developed that by virtue of a chance encounter Harris had pointed out Frison as one of his assailants and that both appellants, serving misdemeanor sentences at the time, told Butler they had been in Waco on the night of November 27, 1969.

Upon the jury's return the State, upon re-direct examination, elicited from Butler that Harris had pointed out the appellant Frison as one of the robbers when the encounter occurred in the courthouse basement. The objection to this testimony was that it was 'repetitious,' 'rank hearsay,' 'completely reversible error.' The objection was overruled.

Thereafter counsel for appellant Watts elicited from Butler that Harris had failed to make a positive identification of Watts at the courthouse.

Then after establishing that the police offense report reflected Harris had related the man with the gun had worn a goatee, that Frison had never been seen by his friends wearing a goatee, that military regulations where he was stationed prohibited goatees, that he did not have a goatee at the time of his arrests, etc., counsel for appellant Frison 'recalled' Harris. This was after the State had rested and a number of defense witnesses had testified. Counsel had Harris acknowledge that he had indeed reported to the police that one of his assailants had a goatee 'probably' 'the one with the pistol.' Then he was asked:

'Q. Now, you recall your prior testimony about being in the basement of the courthouse in Belton with Detective Dell Butler?

'A. Yes, sir.

'Q. And at some point there you saw Charles Watts and Joe Frison there in the basement?

'A. That's right.'

It appears that counsel and the witness were mistaken. We find no place in the record before this court where the witness personally had so testified. Thus, counsel interjected the same evidence before the jury he complained about being elicited by the State from another witness.

We conclude in light of Lyons v. State, Tex.Cr.App., 388 S.W.2d 950, the court erred in permitting Butler to testify that Harris had made a pretrial identification at a time when Harris remained unimpeached as to his identification of the appellant Frison as one of the robbers, despite some question of the sufficiency of the objections to call the matter to the trial court's attention. Cf. Montemayor v. State, Tex.Cr.App., 456 S.W.2d 126 (1970). We further conclude, however, that, having impeached or attempted to impeach Harris as to his identification of Frison, the complained of testimony, if not admissible when offered, would have become admissible subsequently rendering any earlier error harmless and the rule in Lyons v. State, supra, inapplicable. Beasley v. State, Tex.Cr.App., 428 S.W.2d 317, 319. We perceive no reversible error as to the appellant Frison. And, it having been elicited from Butler by the appellant Watts that Harris was unable to positively identify him (Watts) at Belton, we likewise find no reversible error as to Watts.

Appellant's reliance upon Priest v. State, 162 Tex.Cr.R. 66, 282 S.W.2d 390, is clearly misplaced, and not controlling under the circumstances here presented.

Since the appellant Frison 'recalled' Harris and first elicited from him that he had seen Frison at Belton, there is no error in Frison's additional complaint that the court erred in permitting the State to make further inquiry after the subject matter had initially been raised (through this witness) by the defense interrogation.

Next appellants complain of the prosecutor's questioning of State's witness Rufus Daniels about identifying the appellants in a lineup.

Daniels, who was a visitor in a Waco service station on the night of November 27, 1969, the same date of the instant offense, testified that about 11 p.m. appellant Watts had entered such station while he was present and held up the attendant while an unidentified man remained outside. On re-direct examination he testified that two or three weeks later he went to the police station and 'they * * * showed six or seven lined up.' After an objection was sustained he was asked if he had identified the two appellants, 'especially Mr. Charles Watts.' The objection then proffered was sustained, the question was not answered, although the motion for mistrial based upon the fact that a jury instruction to disregard would not suffice was overruled. No further relief, even for a jury instruction, was requested. If there could have been any error, none is presented by these circumstances.

Appellants also complain that the court erred in permitting evidence of an extraneous offense. This claim relates to the testimony of Johnny Meyer, Temple police officer, who on direct examination simply related that at 2:30 a.m. on December 3, 1969, he had seen the appellants together in a car. He described their clothing. On cross-examination Frison's counsel inquired about Frison's clothing 'on the night of the arrest * * * in Temple, Texas.' On re-direct examination the witness was asked what arrest defense counsel had reference to and he answered 'carrying concealed weapon.' The objection then made was sustained and the jury was instructed to disregard the question and answer. The mistrial motion was denied. On direct examination both appellants testified that they had been arrested on December 3rd in Temple. On cross-examination Frison acknowledged that he had a gun with him on December 3rd. The subsequent objection was first overruled and then sustained and no action taken on the request for a jury instruction. After a conference at the bench no further relief was requested. On cross-examination Watts acknowledged he carried a pistol on December 3rd which belonged to Frison. The subsequent objection was sustained and no further relief was requested.

Officer Meyer was later recalled during the trial by the State. Upon direct examination he identified a pistol he had received on December 3rd from Frison. Only after he stated Frison claimed the gun as his was there an objection. The mistrial motion was denied, but the objection was sustained and the jury instructed to disregard 'it.' On cross-examination Frison's counsel inquired into certain details of the arrest including the number of persons arrested and whether Frison's black Russian hat had fallen off. On re-direct examination the prosecutor, noting defense counsel had inquired about the details of the December 3rd arrest, elicited the fact and time of arrest and that a pistol had been 'taken off Mr. Watts.' On re-cross Frison's counsel established Watts was carrying the pistol in his jacket, and Watts' counsel on re-cross developed other details of the arrest and the search and that Meyer had gone at 2:30 a.m. to the scene in response to 'a call of suspicious car driving around one of our motels' which had been previously robbed four or five times within the month.

Extraneous offenses as exceptions to the general rule prohibiting their admissibility may become admissible if part of the res gestae or to show identity of person or crime, intent, motive, scienter and system. 'Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf or to show his failure to have reformed, or to controvert a...