Jones v. State

• Decision Date: 24 November 1982
• Docket Number: No. 62038,No. 3,62038,3
• Citation: 641 S.W.2d 545
• Parties: Raymond Earl JONES, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 545

641 S.W.2d 545

Raymond Earl JONES, Appellant, v. The STATE of Texas, Appellee.

No. 62038.

Court of Criminal Appeals of Texas Panel No. 3.

Nov. 24, 1982.

David R. Bires, Houston, for appellant.

Carol S. Vance, Dist. Atty. & Michael Kuhn & Ira Jones, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DALLY, W.C. DAVIS and TEAGUE, JJ.

OPINION

TEAGUE, Judge.

Appellant was charged by indictment with committing the felony offense of aggravated robbery. A jury found him guilty and thereafter assessed his punishment at 15 years in the penitentiary. Appellant asserts three grounds of error in his appeal. We present them as issues of the case and will entitle the issues as follows: 1) The jury misconduct issue; 2) The jury argument issue; 3) The failure of the trial judge to permit voir dire examination of a State's witness issue. We will overrule all of the grounds of error and reluctantly affirm the conviction.

I. The Facts of the Case

Appellant does not challenge the sufficiency of the evidence. Viewed in a light most favorable to the verdict of the jury, the facts show that at approximately 3:00 O'Clock on a Saturday morning, while the complaining witness was sitting in her automobile, "A '77 blue Firebird", "putting my tapes up", outside Club Atlantis, a night-spot on Griggs Road in Houston, the appellant, who she did not know, approached her vehicle and asked her if she wanted "to smoke a joint" before she went into the night-spot. During this period of time, the driver's window to the complainant's vehicle was down. The complainant declined the appellant's offer, "to smoke a joint." Shortly thereafter, she was told by the appellant "to unlock the other side" of the car. Because the complainant saw that the appellant was armed with a loaded pistol, she acquiesced. After the appellant entered the complainant's vehicle, he robbed her of money, then abducted her, and thereafter instructed her to drive her vehicle down Griggs Road to Cullen Street, where she was to turn onto Cullen Street. She was then to drive to the end of Cullen Street. The complainant, with the appellant as her unwanted passenger, drove her vehicle down Griggs Road toward Cullen Street. While driving her vehicle, the appellant "rolled a joint" and offered it to the complainant. The complainant took "the joint", "inhaled it and handed it back to him." The complainant observed the appellant "put the [unused?] weed in his right sock." Thereafter, the appellant put the gun he had in his hand by his right leg. Because of a traffic light, it became necessary for the complainant to stop her vehicle. After the complainant stopped her vehicle at the traffic light, she then got out of her vehicle, ran and got into the backseat of a nearby moving taxi, screaming all the while: "Help me, help me. Oh, somebody, please, help me. He is going to kill me. Help me, help me." The female cab driver then drove the complainant to the cab stand out of which she worked; "Sky-Jack's Cab Company". Two policemen, who were patroling the area in a marked police vehicle, and who apparently had been dispatched, via a communication from the cab driver to her dispatcher to the police dispatcher, to go to the cab stand, were flagged down by unidentified persons and informed of what previously had occurred. At some unidentified point in time, after the complainant was taken to the cab stand, the appellant was seen driving the complainant's vehicle on the street in front of the cab stand. The record is not completely clear whether this occurred before or after the police officers were flagged down. Nevertheless, the complainant testified as follows: "When they got me out [of the cab], I turned around and I seen my car pass by. I said, 'There is my car right there. He stole my car. He followed me. He's come to kill me.' " Information concerning the type, make, etc., of the complainant's vehicle, as well as a description of the complainant's robber, was relayed to a police dispatcher, who in turn relayed it to all patrolling police units in the area. Soon after this, police officers who were in another police patrol unit saw a vehicle being driven by a person, which vehicle and driver matched the descriptions put out over the police radio by the police dispatcher. The police officers in the second police unit stopped the vehicle and arrested the driver, who turned out to be the appellant. The arresting policemen thereafter drove the police vehicle and the complainant's vehicle, with appellant in their custody and seated in the back seat of the patrol car, to the cab-stand, where an on-the-scene confrontation and identification occurred. The complainant positively identified the appellant as being one and the same person who had accosted, robbed, and abducted her when she was parked in front of the night-spot, Club Atlantis. A further search of the appellant at the cab-stand revealed a quantity of marihuana which was located in a baggy in a sock appellant was wearing, which was the same location where the complainant had seen the appellant "put the weed". A search of the complainant's vehicle at the cab-stand also revealed a .38 caliber derringer pistol, which was found under the driver's seat. The weapon was identified by the complainant as the gun appellant had exhibited to her. The complainant denied the gun belonged to her. "I'm scared of them... I have enough sense not to buy one."

The appellant's version of the facts was slightly contrary to the complainant's version. Appellant testified that he and the complainant had known each other for approximately two months. Appellant testified that the actions of the complainant were precipitated because she was jealous of appellant's "acquaintances with other women." Appellant also claimed that the complainant had threatened "to do something to [him]" because of his "acquaintances with other women." He denied that he had committed any of the acts he was accused of committing, claiming, inter alia, that he had let the complainant out of her vehicle when it was stopped at the traffic light because he and the complainant had had an argument, and she wanted to leave him. Because she wanted to leave, appellant testified that he did not try to stop her from getting out of the vehicle and leaving. The State presented several rebuttal witnesses who testified that they had never seen appellant and the complainant together. They also testified that the complainant's reputation for truth and veracity was good. The jury, by its verdict, accepted the State's version of the facts, and rejected the appellant's version.

II. The Jury Misconduct Issue

The appellant, in one ground of error, complains of jury misconduct. The record reflects that prior to the jury being selected, apparently during the voir dire examination of the veniremen by the attorneys, one of the jurors, ¹ made known to the trial judge and the attorneys the fact that she had attended elementary school with the complainant, and also made known to those persons that she and the complainant had previously attended the same church. Smith, however, told the attorneys and the trial judge that her past relationship with the complainant was not "buddy-buddy, nothing like that. It is just neutral. I just know her." She further stated: "I wouldn't be biased towards her or the Defendant..." Neither the appellant nor his attorney objected to the juror continuing her service as a juror in the cause, nor did they make any requests of the trial judge, such as instructing Smith not to discuss with the other prospective jurors her past relationship with the complainant. The juror then took her seat with the other veniremen, who apparently were seated at a distance from where the conversation the trial judge and the attorneys had had with Smith. Smith was selected as a member of the jury. After the appellant was arraigned, the trial judge excused the jury for the day. However, before excusing the jury, the trial judge "strongly" admonished the jurors that they would judge the case only by the admissible evidence they heard in the courtroom, and would not consider anything else. They were also admonished that although they could tell a husband, wife, boyfriend, or girlfriend where they had been that day, they were not, under any circumstances, to discuss the case with any of those persons.

Prior to excusing the jurors, and adjourning court for the day, the trial judge asked the attorneys if they desired him to give the jurors any further instructions. The attorneys politely responded in the negative. The next morning, other than making a motion in limine, which motion pertained to an apparent extraneous offense the appellant had allegedly committed, counsel for appellant made no other request of the trial judge. The motion in limine was granted. Thereafter, the trial commenced and was concluded after the jury found the appellant guilty and assessed his punishment at 15 years in the penitentiary.

Appellant filed a motion for new trial. At the first hearing on the appellant's motion for new trial, James Edward Gedeon, one of the jurors, testified. He testified that Smith told the other jurors, after jury selection, that she had known the complainant "at school," which statement Gedeon assumed meant "high school." Gedeon also testified that Smith told the other jurors that the complainant was "a quiet girl, kept to herself". Gedeon further testified that the statements Smith made to the jurors occurred during the punishment deliberations, but before a verdict was reached by the jury. Gedeon stated that another juror, probably the foreman, admonished Smith that "she shouldn't discuss that any further", and she did not do so. Gedeon also swore that Smith's comments did not affect his decision regarding the punishment assessed, and he would have voted to assess the same punishment that was assessed had h...