Harris v. State

• Decision Date: 15 September 1982
• Docket Number: No. 66879,66879
• Citation: 642 S.W.2d 471
• Parties: Curtis Paul HARRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 471

642 S.W.2d 471

Curtis Paul HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 66879.

Court of Criminal Appeals of Texas En Banc.

Sept. 15, 1982.

Rehearing Denied Dec. 15 and

Dec. 22, 1982.

W. Tyler Moore, Jr., on appeal only, Bryan, for appellant.

Travis B. Bryan, III, Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CLINTON, Judge.

Before us for automatic review ¹ are a conviction for the offense of capital murder ² and sentence of death assessed pursuant to Article 37.071(e), V.A.C.C.P.

Appellant contends the trial court's refusal to allow effective crossexamination of the State's witness, Valerie Rencher, in order to establish her bias or motive in testifying, denied him his constitutional right to confrontation. See U.S. Const. Amend. VI; and Tex. Const., Article I, § 10. Facts germane to the disposition of this ground of error will be set out below.

The only evidence adduced at trial which connected appellant with the murder of the deceased was the testimony of Valerie Denise Rencher, appellant's sixteen year old girlfriend. According to Rencher, on December 12, 1978, she was with appellant at his home outside Bryan in Brazos County, watching television. At about 7:30 p.m., appellant's brother, Danny, and James Manuel arrived in a car ³ and the couple joined them for a ride.

Sometime after Danny Harris had turned onto Sandy Point Road, driven several miles and stopped, he announced that the car would not start. He observed aloud that "twelve miles is too long to walk," so they began walking away from Bryan. A man came out on his porch and Danny asked whether he had any "cables," to which the man replied he did, but his car was not there.

After walking a short distance more, they saw headlights approaching and Danny Harris said, "We're going to stop this car." Standing in the middle of the oncoming vehicle's lane, Danny stopped a pickup truck, driven by Timothy Merka. Merka advised the group he did have some booster cables. After retrieving the cables from his truck, Merka and Danny Harris hooked the cables to each vehicle. Danny attempted unsuccessfully to start the car several times and after working for approximately thirty minutes, Merka suggested that a man down the road might be able to help them; he began preparing to leave, removing the cables from the vehicles.

According to Rencher, Danny Harris and James Manuel went to the trunk of their car and she could hear them talking, but not what they said. Though her testimony was conflicting, Rencher ultimately settled on a version in which she saw Danny at that location, holding a jack. Danny then approached the witness and appellant, who were standing beside the front of the car, and, positioned on the other side of Rencher, whispered across her to appellant: "We're going to drive this man." ⁴

Rencher could not remember "how" he got it, but she thought appellant got the jack from Danny, then began "drifting" to the driver's side of Merka's truck, then around its rear. Appellant walked behind Merka, and Danny, facing Merka, "pushed [him] with both hands and his chest," knocking him on his back. Danny sat on Merka's stomach, pinning his wrists and appellant "hit [Merka] with the jack." Rencher testified Merka asked, "What do you want?," and she said, "Don't hit him no more," but appellant hit him again. According to Rencher, she at this point got into Merka's truck and seated herself in the middle of the cab.

Rencher testified appellant hit Merka approximately six additional times on the top of his head, then entered the truck; Danny and James Manuel went to Merka's body, apparently located and took the deceased's wallet. Danny Harris observed, "If it was the man's time to die, it was the man's time to die." After more riding around and a side trip to Waller, Rencher went home with appellant and slept with him that night.

On crossexamination, Rencher conceded that as she sat in the truck she could not see what was transpiring outside because the dome light was on and admitted she actually saw appellant hit the deceased twice. ⁵ She also testified that she did not warn the deceased of the impending attack. She denied remembering her prior statement that Danny Harris struck the first blow and appellant "joined in." She insisted that she could not remember anything about "how" appellant obtained the jack, though she denied he had left his position next to her to get it from the trunk. She acknowledged she had spent two or two and one half hours "rehearsing" her testimony with the District Attorney on the preceding night. She was vigorously crossexamined about never having before mentioned in a statement that she told appellant, "don't hit him no more."

Returning to Rencher's position between appellant and Danny when appellant "all of a sudden had [the jack]," defense counsel inquired:

"Q: For Curtis to get the jack from Danny, he would have either have to handed [sic] it in front of you or behind you, wouldn't he?

A: I guess.

Q: And you don't remember if he did or not?

A: No.

Q: Did anybody promise you anything in exchange for making a statement?

A: No.

Q: No?

A: Not that I can remember.

Q: Did anybody say anything to you like, 'you help us, we'll help you.'

A: I can't remember.

Q: You don't recall saying in a tape recorded statement in response to that question from the District Attorney....

'Nobody has put any pressure on you or promised you anything is that right?'

And you responded,

'I wouldn't say promised me, but there has been somebody that said, "If you help us, we'll help you"?'

Did you say that to the District Attorney on the 8th?

A: Not at this time.

Q: Ma'am?

A: Not at this time.

Q: Was that a true statement that you told the District Attorney ... that somebody had said to you, 'If you help us, we'll help you?'

A: I can't remember.

Q: You can't remember if that's true or not?

A: What I'm saying is that I can't remember who told me that.

Q: But someone did say that to you?

A: I can't remember.

Q: You know, don't you, that you've been accused of the offense of murder, don't you? ⁶

A: Pardon me?

Q: You know you've been accused of the offense of murder?

MR. MAYHAN [RENCHER'S ATTORNEY]: Judge, I think I'm going to have to object at this point in time. As far as I know, there is no indictment or complaint or information that's filed against her pending in the District Court that has jurisdiction."

The trial court sustained the witness' attorney's objection.

Defense counsel continued,

"Q: Do you remember when you went before Judge Hensarling ... and she said, ' You've been accused of murder?' Do you remember that?

[RENCHER'S ATTORNEY]: Judge, again I object. We're getting into a juvenile matter which is privileged, I believe, at least at this point in time.

COURT: I have no way of knowing exactly what he's referring to but if it's a juvenile matter, the objection is sustained.

* * *

* * *

Q: Valerie, this gentleman that just stood up in the gray suit, ... represents you arising on facts coming out of this killing, doesn't he?

[RENCHER'S ATTORNEY]: Judge, I object again, if we're still getting into the juvenile matter.

COURT: Sustained, Mr. Moore.

MR. MOORE: Your Honor, note our exception--

COURT: Sustained to any juvenile proceedings.

[RENCHER'S ATTORNEY]: Thank you, Judge.

MR. MOORE: Judge, the jury is entitled to know--"

Whereupon the court intervened and had the jury removed from the courtroom.

Defense counsel stated his intent was to establish the "bias and prejudice of [the witness in this case by showing] the fact certification proceedings have started ... [with the filing of a] petition which charged her with the capital murder for which our client is on trial." Counsel argued that the jury should be fully informed of the witness' status and concluded,

"To deny us the right to effectively cross examine this witness denies us the right to attempt to impeach her as to her credibility by showing what she has to gain or lose as a result of her testimony, denies us the opportunity to show the jury that in exchange for her testimony about what happened in this killing, that if she is convicted she is going to get a favor from the District Attorney's Office."

At this point--and, for the first, as well as last time during this exchange--the District Attorney was heard on the issue: "Judge, I believe that goes to the Burkhalter case, ⁷ and we've already brought out the ten year situation, and we object to it, any further questioning about the juvenile proceeding and charges and accusations and so forth. "

Again, Valerie Rencher's attorney spoke up:

"Well, the only fault I find with the whole thing, Judge, is the fact that we're presuming something that hasn't come to pass. True enough, there is an application [to certify her as an adult] filed, but the juvenile judge hasn't heard that application, nor has he ruled, so at this point in time to say she is accused, that is that she stands in the shoes of a person accused of a criminal offense under the adult laws of the State of Texas is certainly not a true statement of the facts. "

Rencher's attorney added that to his knowledge, the Brazos County District Attorney, Travis Bryan, did not represent the State in juvenile matters, but another individual did, "so it's not under their control at this point in time. It's not under this court's control ... because she has not been ... indicated or charged or in any other manner ... come before the jurisdiction of this court on this matter, [but is only] a witness as she sits here now."

Defense counsel requested an opportunity to develop the fact that the juvenile prosecutor had indeed agreed to abate the juvenile proceedings against Rencher at the request of Mr. Bryan, the District Attorney. The court replied, "That will be denied, and both objections of Mr. Bryan and Mr. Mayhan sustained."

At a recess, the defense called Travis Bryan, III. The ...