Hardin v. State

Decision Date06 October 1971
Docket NumberNo. 44070,44070
Citation471 S.W.2d 60
PartiesCharles Edward HARDIN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Merritt F. Hines, Tom Parker, Midland, for appellant.

James A. Mashburn, Dist. Atty. and Joel D. Conant, Asst. Dist. Atty., Midland, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for robbery by assault. A prior conviction for an offense of like character was alleged for enhancement. The punishment was assessed at life.

It is contended that the court erred in refusing to issue bench warrants for witnesses who were incarcerated in prison and in jail and for trying appellant while he was shackled.

We affirm.

The sufficiency of the evidence is not challenged.

The evidence shows that the appellant at gun point robbed Joe Hemingway, an employee of a grocery store in Midland, of some $240.

Some four days prior to the trial, the appellant's counsel filed an application for bench warrants for Theo Rae Thames, Russell Chamberlain and Raymond Lee Brown who were in the Tarrant County jail, and for Nancy Haggard and Pat Wayne Gilliland who were both in the Texas Department of Corrections. It was alleged that they were to be used as alibi witnesses. There has been no showing that the witnesses would have testified to an alibi or that their testimony would have been material.

It is a fundamental element of due process of law that an accused has the right to present his own witnesses to establish a defense, and due process is denied when the State arbitrarily denies the accused the right to put on the stand a 'witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material.' Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

In Cruz v. State, Tex.Cr.App., 441 S.W.2d 542, we reversed a conviction in which the trial court denied defendant's timely application to subpoena and issue a bench warrant for his co-defendant who had been convicted on a plea of guilty and who was a penitentiary inmate. The trial court denied the application pursuant to Article 82, Vernon's Ann.P.C., and Article 711, V.A.C.C.P., which were then in force but later repealed by the Texas Legislature. Our reversal was based on Washington, supra.

In Washington, the defendant and the denied witness were coindictees for the same offense. Washington v. State, Tex.Cr.App., 400 S.W.2d 756. In Cruz, the defendant and the denied witness were co-defendants indicted for the same offense. In each case the materiality of the testimony of the denied witness was sufficiently established.

The materiality of a witness' testimony is the touchstone for determining whether reversible error was committed in denying compulsory process. 'The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use.' Washington v. Texas, supra.

The issue before us in the instant case is what measure of materiality is necessary before the court will commit reversible error by denying compulsory process of a witness.

Where a defendant seeks a continuance because of an unavailable witness the Texas Legislature demands that the motion set forth the 'facts which are expected to be proved by the witness, and it must appear to the court that they are material.' Article 29.06(3), V.A.C.C.P. It is further required that 'the facts set forth in said motion were probably true.' Article 29.06(6), V.A.C.C.P. As a minimum requirement to determine the materiality and truth of the facts set forth the Legislature has also determined that '(a)ll motions for continuance on the part of the defendant must be sworn to by himself.' Article 29.08, V.A.C.C.P.

This Court has consistently and recently held that no reversible error exists where a defendant sought either a continuance to get his witness, or an 'attachment of witness,' where the defendant did not offer a sworn statement at the time of the motion saying what the witness would have testified to.' Brito v. State, Tex.Cr.App., 459 S.W.2d 834. See also Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706.

The same rights of a defendant are at stake when he seeks a continuance to get a witness, an attachment of a witness, or a bench warrant for a witness: has his constitutional right to compulsory process of a witness been denied. The same issue is before the court in each instance: whether the request of a witness by the defendant is a futile act which will only serve to cause delay rather than to promote justice. Where a defendant seeks compulsory process for a witness to appear in his defense which results in a continuance, an attachment, or a bench warrant the court is within its rights to demand sufficient appearance of the materiality of the witness' testimony. An affidavit or sworn testimony by the defendant saying what the witness would testify to is a reasonable minimum requirement.

In the instant case the appellant did not make a sworn statement and said nothing. His attorney took the stand during the trial to state that his work product and investigation convinced him that these five witnesses would, if present, have testified that appellant could not possibly have been in the City of Midland on the day alleged in the indictment. He further testified that neither he nor his investigator had seen or talked to any of the five witnesses and did not know what the...

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43 cases
  • Melancon v. State
    • United States
    • Texas Court of Appeals
    • November 21, 2001
    ...(noting that party requesting writ of attachment must show what the witness would have testified to); Hardin v. State, 471 S.W.2d 60, 62 (Tex.Crim.App.1971) (noting that defendant seeking continuance or attachment must offer a sworn statement saying what the witness would have testified Alt......
  • In Re James Barr
    • United States
    • Texas Supreme Court
    • February 13, 1998
    ...An affidavit or sworn testimony by the defendant reciting what the witness would testify to is a minimum requirement. Hardin v. State, 471 S.W.2d 60 (Tex.Crim.App. 1971). Any bail which is set by the judge or magistrate should be reasonable and in such amount as to secure the attendance of ......
  • State v. Pierce
    • United States
    • Texas Court of Appeals
    • September 25, 1991
    ...53(a) (Pamph.1991). Generally, it is presumed on appeal that all rulings of the trial court are correct, Hardin v. State, 471 S.W.2d 60, 63 (Tex.Cr.App.1971), and any omission in the record supports the trial court's judgment or order. Haynes v. McIntosh, 776 S.W.2d 784, 785-86 (Tex.App.198......
  • Adanandus v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 16, 1993
    ...element of due process of law that an accused has the right to present his own witnesses to establish a defense." Hardin v. State, 471 S.W.2d 60, 62 (Tex.Crim.App.1971); see also Ex parte Scarbrough, 604 S.W.2d 170, 174 (Tex.Crim.App.1980). However, only relevant evidence is admissible, TEX......
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