Hernandez v. State

• Citation: 643 S.W.2d 397
• Decision Date: 20 January 1982
• Docket Number: No. 68008,68008
• Parties: Ramon Pedro HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 397

643 S.W.2d 397

Ramon Pedro HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 68008.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 20, 1982.

Rehearing Denied Jan. 18, 1983.

Victor R. Arditti, Richard M. Lovelace, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and R. Bradford Stiles, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

The appellant contends that the trial court erred: in overruling his motion for continuance, in overruling his motion to attach absent venire members, in permitting an incompetent witness to testify, in allowing the State to question the incompetent witness by asking her leading questions, and in refusing to submit the third punishment issue of Art. 37.071, V.A.C.C.P. to the jury. Also, the appellant complains of six instances of allegedly improper jury selection.

The appellant was convicted for the murder of Oscar Martin Frayre. The evidence establishes that in the early morning hours of June 20, 1980, the appellant entered a closed gas station in El Paso and robbed and fatally shot Frayre, a mechanic at the gas station. Frayre, who had been staying overnight in the quarters provided for him in the back of the gas station, was shot three times. Lucila Sanchez, a friend of the appellant, was present outside the gas station during the commission of the offense and she testified against the appellant at trial. The sufficiency of the evidence is not challenged.

The appellant first complains of the overruling of his motion for continuance. The motion urged that appointed counsel had not been given enough time to investigate and prepare for trial. The granting or denial of a motion for continuance is vested in the sound discretion of the trial court, and reversal of a judgment is justified only when it is shown the trial court has abused its discretion. Corley v. State, 582 S.W.2d 815 (Tex.Cr.App.1979); Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977); Nelson v. State, 505 S.W.2d 271 (Tex.Cr.App.1974); Bryant v. State, 423 S.W.2d 320 (Tex.Cr.App.1968).

The record in the present case shows that other counsel had been first appointed to represent the appellant, but on August 15, 1980, the two attorneys who tried the case and who now represent the appellant on appeal were appointed. The case was set for trial on September 8, 1980. Although this is a relatively short time for preparation in a case where the State is seeking the death penalty, no specific, serious matter has been raised by the appellant and the record does not otherwise show that the appellant's defense was prejudiced by counsel not having more time to prepare for trial. We find no abuse of discretion in the trial court's action. Furthermore, since the appellant himself did not want a continuance he did not sign the motion for continuance as required by Art. 29.08, V.A.C.C.P., and for this reason nothing is presented for review. Kemner v. State, 589 S.W.2d 403 (Tex.Cr.App.1979); Zanders v. State, 515 S.W.2d 907 (Tex.Cr.App.1974); Ikner v. State, 468 S.W.2d 809 (Tex.Cr.App.1971).

Complaint is next made that the appellant's motion to attach absent veniremen was erroneously overruled. In Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), it was said:

"Appellant relies upon Article 35.01, V.A.C.C.P., to support his claim that the court erred in refusing his motion for attachments to issue against absent prospective jurors who had been summoned and not properly excused from jury duty. The statute is directory, not mandatory, and any failure of the court to observe a literal compliance will not constitute reversible error in the absence of a showing of injury."

The appellant in the instant case has failed to show any injury resulting from the trial court's action in overruling the motion. This ground of error is therefore overruled. See Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973); Dent v. State, 504 S.W.2d 455 (Tex.Cr.App.1974); Moreno v. State, 587 S.W.2d 405 (Tex.Cr.App.1979).

In his next two grounds of error, the appellant asserts that the trial court erred in permitting Lucila Sanchez, who he says was an incompetent witness, to testify and in permitting the State to ask her leading questions over objection.

The record discloses that Lucila Sanchez was 24 years old and a high school graduate of 1975; she attended special education classes in high school. It is apparent from the record that it was difficult for her to articulate in English certain responses to questions and that many questions had to be rephrased before she understood them. Nevertheless, she answered all the questions, her answers were understandable, and her answers reflect an ability to observe intelligently the events in question.

The issue of a witness' competency is a question for the trial court, and its ruling will not be disturbed on appeal unless an abuse of discretion is shown by a review of the entire record, including the witness' trial testimony. Watson v. State, 596 S.W.2d 867 (Tex.Cr.App.1980); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978); Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974); Melton v. State, 442 S.W.2d 687 (Tex.Cr.App.1969). We conclude from a review of Lucila Sanchez's trial testimony that the court did not abuse its discretion in permitting her to testify.

Complaint is also made of the trial court's action in permitting the State to ask Lucila Sanchez certain leading questions over the appellant's objections. This was a matter within the sound discretion of the trial court. Unless a defendant can show that he was unduly prejudiced by virtue of such questions, no reversal of his conviction will result. Navajar v. State, 496 S.W.2d 61 (Tex.Cr.App.1973); Ortega v. State, 493 S.W.2d 828 (Tex.Cr.App.1973); Uhl v. State, 479 S.W.2d 55 (Tex.Cr.App.1972); Linton v. State, 171 Tex.Cr.R. 213, 346 S.W.2d 320 (1961). As one of the exceptions to the rule excluding leading questions, it has been said that leading questions may be permitted when the witness has difficulty in understanding the English language. See Ray, Texas Evidence, Sec. 578 at 534 (3d ed. 1980).

The record in the instant case discloses that Lucila Sanchez had difficulty in understanding certain questions and in articulating certain responses in the English language. In some instances, the court's interpreter was used. In other instances, leading questions were allowed. We find no error in the court's actions, especially since substantially the same testimony, elicited through leading questions, was obtained from Lucila Sanchez in response to questions by the appellant's counsel on cross-examination; the appellant was not prejudiced by virtue of the leading questions. See Ortego v. State, supra; Davis v. State, 100 Tex.Cr.R. 617, 272 S.W. 480 (1925); Dave Lehr, Inc. v. Brown, 58 S.W.2d 886 (Tex.Civ.App.--Waco, 1933).

The appellant next asserts that the trial court erred in refusing his request to submit the third punishment issue to the jury. Art. 37.071, V.A.C.C.P., provides that at the punishment stage of a capital murder trial and upon conclusion of the presentation of the evidence, "the court shall submit the following issues to the jury:

"(1) ....

"(2) ....

"(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." [Emphasis added.]

In urging that the third punishment issue was raised by the evidence, the appellant in his brief says, "The evidence to which we make reference in the instant case is testimony that appears in several places in the Statement of Facts to the effect that sounds of a fierce struggle were heard from inside the filling station a moment before the shots were heard. Voices raised in argument were also heard, according to the testimony of Lucila Tercero Sanchez. It is reasonable to draw the inference from this that the decedent was putting up some kind of resistance to whatever was being done to him, and this before he was fatally injured, or injured at all."

According to the appellant's brief, "sounds of a fierce struggle were heard from inside the filling station a moment before the shots were heard." The appellant, however, does not cite us to any evidence in the record to support his contention. Our review of the record discloses that other than loud voices, the only "sounds" heard coming from inside the gas station were sounds of tools falling on concrete. This is not evidence of a fierce struggle. And although the evidence supports the appellant's contention that Lucila Sanchez heard the appellant and Frayre exchanging words in a tone of voice that sounded as if they were arguing, the only words she could discern were the appellant saying, "Paso el dinero," and Frayre responding, "No tengo dinero yo." When asked for the English translation, the court's interpreter stated that "paso el dinero" meant "pass the money or hand over the money" and "no tengo dinero yo" meant "I do not have any money."

In order to raise the issue of provocation, it is necessary that there be evidence of the deceased's conduct just prior to his death; also, that evidence must be sufficient to be considered provocation. The loud voices heard by Lucila Sanchez in this case together with the sounds of tools falling on concrete are not evidence of Frayre's conduct; they do not show that Frayre may have provoked the appellant to kill him. Therefore we are unable to conclude from our review of the record that the evidence raises the issue of provocation; we also decline the appellant's invitation to infer "that the decedent was putting up some kind of resistance to whatever was being done to him." See and compare Evans v. State, 601 S.W.2d 943 ...