Harris v. State, s. 48880

• Decision Date: 18 December 1974
• Docket Number: Nos. 48880,48881,s. 48880
• Citation: 516 S.W.2d 931
• Parties: Johnny Leroy HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 931

516 S.W.2d 931

Johnny Leroy HARRIS, Appellant, v. The STATE of Texas, Appellee.

Nos. 48880, 48881.

Court of Criminal Appeals of Texas.

Dec. 18, 1974.

Rehearing Denied Jan. 15, 1975.

William T. Miller, San Antonio, Garland G. Wier, San Antonio, (on appeal only), for appellant.

Ted Butler, Dist. Atty., and Fred Rodriguez, Charles Conaway, Bill White and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The appellant was tried by a jury on consolidated indictments charging murder with malice and robbery, and was convicted of each. Punishment was assessed at two thousand years' imprisonment and two hundred years' imprisonment, respectively.

The evidence reflects that appellant and a co-defendant, one Applewhite, drove to a service station in San Antonio on the evening of January 10, 1973. Applewhite was to remain with the car as a 'lookout' while appellant robbed the station attendant. Appellant left the car, robbed the station attendant, and was returning to the automobile when he was approached by San Antonio police officer George Jacobs. Jacobs attempted to return appellant to the service station when a scuffle ensued, during which Jacobs suffered a gunshot wound which subsequently caused his death.

Appellant's first ground of error challenges the sufficiency of the evidence to support the conviction for murder (No. 48,880). He urges that the only evidence in support thereof is his own confession, and that his agency in the offense is uncorroborated by any other source. Appellant admits that his confession, standing alone, is sufficient evidence to establish his criminal agency. However, since he also argues that the confession was improperly admitted into evidence, it is urged that the confession should not be considered. Since we have determined that the confession was properly admitted (see the discussion of grounds of error two and three below), it could properly be considered by the jury, and was itself sufficient evidence to show the criminal agency of appellant. See Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974) and McCall v. State, 512 S.W.2d 334 (Tex.Cr.App.1974).

Appellant's second and third grounds of error challenge the admission into evidence of his confession. It is urged that the court's ruling on appellant's motion to suppress was based on '. . . imaginary testimony of an unknown person who never appeared in court and did not testify.' It is also urged that the confession was taken after appellant had asked for the presence of counsel and in spite of his refusal to waive that right.

The record of the hearing, outside the presence of the jury, on appellant's motion to suppress, does indeed reflect that the court partially based its findings of fact and conclusions of law upon the testimony of one Gloria Gutierrez, an alleged witness to the confession called, according to the court, by the defense. The record also reflects that no such person testified at the hearing although appellant's signature on the confession was witnessed by a Gloria Gutierrez.

However, this matter was contained in what the court described as 'tentative' or 'rough draft' findings. Subsequent 'final' findings omitted all reference to Gloria Gutierrez. The obvious error in the initial findings, while glaring, does not negate the fact that the other evidence actually presented at the hearing was sufficient to support the court's conclusion that the appellant's confession was voluntary and that he had knowingly and intelligently waived his right to counsel at the interrogation.

The evidence reflects that shortly after his arrest the appellant was warned of his rights by a magistrate. He also discussed his case with an attorney, but did not retain his services. Thereafter, appellant was taken from the Bexar County jail to the robbery division of the San Antonio police department for interrogation. At that time, he requested the presence of the attorney with whom he had discussed his case, and because counsel could not be reached the interrogation was postponed. Four days later, appellant was again brought to the police department, this time at the request of a woman, apparently his girl friend, who was also charged with robbery. After talking with her for a time, appellant told one of the officers investigating his case that he wanted to tell about 'the job' and that he would give a statement. He subsequently confessed, and the record reflects that he read his confession, made corrections in the body of it and signed it. He had received warnings from the magistrate, as noted; from the attorney with whom he discussed the case; and he was read the warnings printed on his confession prior to the commencement of the interrogation which resulted in his confession. The confession, as noted, contained 'boilerplate' warnings. It appears that appellant, who was twenty-six years old, a high school graduate and who read and wrote the English language, read the entire confession, including the printed warnings and the waiver provisions.

The evidence presented supports the court's conclusion that appellant's confession was voluntary and that he knowingly waived his right to have counsel present at the interrogation. See Randolph v. State, 493 S.W.2d 869 (Tex.Cr.App.1973).

Appellant's fourth ground of error urges that the court erroneously refused to grant his motion for mistrial, based on suppression of evidence by the State.

The record reflects that appellant's co-defendant filed a motion for discovery (although the motion is not contained in the record) on which no apparent ruling was obtained. Later, during the trial, the State called as witnesses the police officer who investigated the offense and the woman who reported the shooting of Officer Jacobs. After each witness testified, counsel for appellant and counsel for his co-defendant were given copies of the witnesses' prior written statements for use in cross-examination. After the testimony and cross-examination of a third witness had been heard, counsel for appellant's co-defendant filed a motion for mistrial, urging that the statements contained evidence favorable to the defense and that the State, by not delivering the statements to the defense, had suppressed the evidence. After a lengthy and confusing discourse between the court, counsel for the State, counsel for the co-defendant, and counsel for appellant, the court granted a severance as to the co-defendant, but refused to grant a mistrial as to either party.

In view of the fact that the witnesses' statements were readily made available to both defense attorneys in compliance with the requirements of Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1961) and Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972), it is apparent that there was no basis for the court's action in granting a severance as to the co-defendant Applewhite. It follows that since there was no suppression of evidence, neither Applewhite nor the appellant was entitled to a mistrial. The fact that a 'mistrial' was erroneously granted to Applewhite would not entitle the appellant to the same generosity, absent some error actually requiring a mistrial. No such error occurred here. Appellant's contention, while presenting a novel situation, is without merit.

The fifth contention advanced urges that the court improperly required the appellant to call all his witnesses to the stand in order to have them testify outside the presence of the jury before he was allowed to offer their testimony in evidence.

The record reflects that appellant called as witnesses a man and wife who, with their counsel, were present in the court. The witnesses' attorney advised the court that he had instructed his clients to claim their Fifth Amendment privilege, and, in response to certain questions by appellant's counsel, they did so. Upon being advised that the witnesses would claim the privilege, the court required their testimony to be given outside the presence of the jury, apparently for the purpose of allowing the State to present its objections.

Appellant's only objection to this procedure was as follows: '. . . I think this is hindering and hamstringing the Defense.' This objection is far too general to preserve the matter for our review. See Myers v. State, 491 S.W.2d 412 (Tex.Cr.App.1973) and Williams v. State, 491 S.W.2d 142 (Tex.Cr.App.1973). In addition, the record further reflects that both witnesses were later recalled in the presence of the jury and answered fully all the questions directed to them by counsel for appellant. The appellant's fifth ground of error is overruled.

Appellant's sixth ground of error urges that the court should have granted him a continuance when, during the trial, his counsel became too ill to represent him. The record reflects that counsel became ill on Friday and that the court then adjourned the proceedings and resumed them on Monday.

Counsel's personal physician testified during the proceedings on Friday. He stated that counsel appeared to be suffering from a viral infection and that twenty-four to forty-eight hours' rest should be ample recovery time.

On the following Monday, appellant himself sought a mistrial based on the evidence of his counsel's illness presented previously on Friday. No other evidence was offered and counsel did not testify, although he announced ready and proceeded with the case. The record reveals no evidence tending to indicate that counsel was so ill on Monday as to be incapable of effectively representing the accused. In fact, other than appellant's Pro se motion for mistrial, no effort whatsoever was made to further postpone the proceedings. In view of the state of the record, we can only conclude that if the court had been called upon to grant a continuance, such request could properly have been refused.

Appellant's seventh and last ground of error urges that the State was improperly allowed to...