Garcia v. State

• Decision Date: 22 April 1970
• Docket Number: No. 42768,42768
• Citation: 454 S.W.2d 400
• Parties: Ernest Eugene GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 400

454 S.W.2d 400

Ernest Eugene GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 42768.

Court of Criminal Appeals of Texas.

April 22, 1970.

Rehearing Denied June 17, 1970.

Walter Wolfram, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Amarillo, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from a conviction for murder without malice with the punishment assessed at five years.

The indictment charged murder with malice.

The State's evidence reflects that the appellant shot and killed Billy Joe Stone on December 25, 1968, in Potter County. Testifying in his own behalf the appellant admitted shooting the deceased, but claimed self defense. The court charged on the law of self-defense. The jury by their verdict rejected the defense.

Initially, appellant contends the trial court erred in denying his motion or motions for the production of the grand jury testimony.

In a pre-trial motion the appellant requested such testimony and in the alternative requested the court to examine in camera such testimony to determine any possible inconsistencies in the event any of the State's witnesses had appeared before the grand jury. The trial judge ordered the grand jury testimony transcribed and delivered to him. At the trial it was established that two of the State's witnesses had testified before the grand jury. In the absence of the jury the judge announced to the appellant and his counsel that his in camera inspection reflected their testimony had been consistent with the transcription in his possession. As to the witness Sylvia Chavez the judge read to the appellant and his counsel certain portions of the grand jury testimony, which, while it was not inconsistent with her trial testimony, related to matters not developed at the trial. The judge did deny the further requests for an inspection of the grand jury testimony. The careful trial judge sealed the grand jury testimony in question and made it a part of the appellate record for this court's inspection. Our examination supports the trial judge's conclusion that the testimony was consistent.

Further, it appears that the appellant cross-examined one of the witnesses in question from a transcription of his testimony at the examining trial.

It has been generally recognized that an accused is not ordinarily entitled to the inspection of grand jury minutes or testimony for the purpose of ascertaining evidence in the hands of the prosecution, or for the purposes of discovery in general. And this is true whether the request is made before or during trial. Hanes v. State, 170 Tex.Cr.R. 394, 341 S.W.2d 428; 20 A.L.R.3d 59, 61. See also Goode v. State, 57 Tex.Cr.R. 220, 123 S.W. 597; Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611, 618; Bryant v. State, Tex.Cr.App., 397 S.W.2d 445, cert. den. 385 U.S. 858, 87 S.Ct. 106, 17 L.Ed.2d 84; Young v. State, Tex.Cr.App., 398 S.W.2d 572.

The denial of the grand jury testimony has been upheld where there is no showing in the record of any inconsistencies between the witness' trial testimony and his testimony before the grand jury. Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718; Nisbet v. State, 170 Tex.Cr.R. 1, 336 S.W.2d 142, cert. den., 363 U.S. 829, 80 S.Ct. 1601, 4 L.Ed.2d 1524.

Of course, the production of grand jury testimony upon request lies within the sound discretion of the trial court and the accused may be permitted to inspect such testimony where some 'special reason' exists. Taylor v. State, supra.

If the prosecutor uses or introduces during the course of the trial portions of the grand jury testimony the defense is entitled to inspect and use such testimony that covers the same subject involved in the portions used and introduced by the prosecution. Kirkland v. State, 86 Tex.Cr.R. 595, 218 S.W. 367; Green v. State, 53 Tex.Cr.R. 490, 110 S.W. 920; Cook v. State, Tex.Cr.App., 388 S.W.2d 707; see also Taylor v. State, supra; Young v. State, supra; Goode v. State, supra. We are not confronted with such use in the case at bar, and the appellant would not have been entitled to the grand jury testimony for such reason.

In Bryant v. State, Tex.Cr.App., 423 S.W.2d 320, it was held that the defendant had shown no 'particularized need' for the production of the grand jury testimony, thus indicating the accused must demonstrate a 'particularized need' for such testimony to outweigh the traditional policy of grand jury secrecy.

Under the circumstances presented, we conclude that the appellant has failed to show a 'particularized need' for the grand jury testimony, and the trial court did not abuse its discretion in refusing the same. Acuff v. State, Tex.Cr.App., 433 S.W.2d 902; 4 Branch's Anno. P.C., 2nd ed., Sec. 103, p. 116. In fact, the procedure followed by the careful trial judge is to be commended.

We do not agree that Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, calls for a different result.

Ground of error #1 is overruled.

In his second ground of error appellant complains of the refusal to grant his pretrial motion to require the production and inspection of the criminal records of certain State's witnesses.

Appellant cites no authority for his proposition. No showing was made that the State was in possession of such records or information. At the close of the State's case in chief the District Attorney stated in open court he had no knowledge of any criminal records of the State's witnesses that would be admissible for impeachment or otherwise. We perceive no error. See Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807.

Ground of error #2 is overruled.

Enriquez v. State, Tex.Cr.App., 429 S.W.2d 141, supports the trial court's action in overruling appellant's pre-trial motion to require the State to produce the criminal records of any members of the jury panel for the week in the possession of the State as well as any information of mental illness, etc., of such prospective jurors.

There is no showing that the State had such information or records in its possession, and no showing that any juror who was accepted after voir dire examination was not qualified to serve as a juror.

Ground of error #3 is overruled.

Next, appellant contends the court erred in granting the State's motion in limine prohibiting him from referring to or showing that the deceased had previously 'served a penitentiary sentence for burglary.'

It appears the court granted such motion because the conviction for burglary was not a crime of violence and would not tend to prove the deceased was a dangerous, violent, abusive or quarrelsome person. Further, there was no showing that the appellant knew of such conviction at the time of the alleged offense, and at the time the motion was granted no issue of self-defense had been raised.

'Although self-defense is claimed by the defendant, he may not show previous offenses or acts of the deceased against others, or that he was a bad man generally, unless he has first shown that he himself had knowledge of such facts.' 4 Branch's Anno.P.C., 2nd ed., Sec. 2338, p. 598.

The court did not err in granting the State's motion in limine. If during the trial the evidence rendered such conviction admissible it was incumbent upon the appellant to call the matter to the trial court's attention.

Ground of error #4 is overruled.

Appellant also contends the court erred in refusing to grant his motion to dismiss the prosecution since the sheriff's office intercepted and read a 'confidential communication' from the appellant's counsel to him while confined in the Potter County jail. It was shown that a letter dated January 29, 1969, arrived at the jail, was opened and read in accordance with jail security regulations and with a waiver signed by the appellant. The letter was then delivered to the appellant. It was shown the contents thereof were never revealed to the District Attorney. In such letter counsel wrote the appellant that he thought he had discovered a witness who would testify he saw the deceased in possession of a gun at the time the deceased was taken to the hospital following the shooting. The appellant was warned not to let the prosecutors or peace officers know of this development 'until it is sprung on them in the courtroom.' Counsel further asked the appellant to write him in detail 'all * * * about' the pistol with which the alleged offense had been committed.

In overruling the motion the court noted that appellant's counsel had many years of experience and knew or should have known of the jail security regulations. To require dismissal of the prosecution under such circumstances would be the height of absurdity. The fate of the prosecution should not rest in the hands of the defense counsel as to his choice of methods of communication with a confined client.

There is nothing to indicate that counsel was permitted only to communicate with the appellant by means of the United States mail. In fact, the contrary appears. The record also fails to reveal that there was such a witness as mentioned in the letter.

Ground of error #5 is overruled.

Next, appellant contends the court erred in permitting the State to interrogate the appellant as to previous fights in which he may have engaged. On cross-examination the following is reflected by the record:

'Q. It wasn't a shooting over money or anything like that, was it?

'A. No, sir.

'Q. In fact, you just really didn't know each other very well at all?

'A. No, sir.

'Q. He certainly never beat you up before, had he?

'A. No, sir.

'Q. Did you ever see him beating anybody else up?

'A. No, sir.

'Q. Never had, had you?

'A. No, but I wasn't * * *

'Q. Of course, you had been in fights * * *'

At this point defense counsel interposed an objection that the question 'calls for extraneous offenses' and was 'immaterial and prejudicial.' The objection was overruled after the prosecutor urged the question was relevant. Thereafter the District Attorney continued:

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