Love v. State, 50404

Decision Date04 February 1976
Docket NumberNo. 50404,50404
Citation533 S.W.2d 6
PartiesDonald Ray LOVE alias Donald Ray Davis, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Lindsey Enderby, Court appointed, Dallas, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed at life.

The indictment alleged the offense occurred on or about September 2, 1973, and the record reflects that trial was in March, 1974.

The record reflects that the deceased, John Arthur Manson, was found in a severely wounded condition in his bedroom on September 3, 1973. Deceased was taken to Parkland Hospital, where he died eight days later.

Dr. William Sturner, medical examiner for Dallas County, testified that deceased died from 'gunshot wounds, stab wounds and burns of the body.' Dr. Sturner stated that any one of the causes, in and of itself, could have caused death.

In a written confession, appellant stated that he shot and stabbed the deceased. An oral confession by appellant led police to the recovery of appellant's knife. Appellant's fingerprints were found on a bottle in the bedroom in which deceased was killed. Tests performed in the Griminal Investigation Laboratory reflected that bullets taken from the body of the deceased were fired from a gun that witness Jordan testified appellant brought to his house on September 2, 1973. Appellant was placed in possession of deceased's automobile following the occasion in question.

Appellant complains that 'the trial court erred in failing to enforce its orders after proper and timely filing by defendant and rulings by the court regarding disclosure of exculpatory evidence after admission at the time of trial by the prosecutor of 'possible indications of another individual or individuals' (as being participants in the murder) thus greatly prejudicing the appellant's right to a fair trial and right of due process.'

It appears that appellant's contention is directed to the failure of the State to reveal that another person or persons were named by deceased prior to death as his assailants.

The record reflects that before trial began appellant requested the court to order production of exculpatory evidence and in that connection the prosecutor was questioned by appellant relative to identification of one Dale Patrick Williams as having been identified 'as a participant in the stabbing and shooting.' The prosecutor answered that there were some indications of possible participation by another individual or individuals, but that he could not verify the reliability of same and that Dale Patrick Williams we no-billed for this offense.

Police officer James Brigdon, who testified as to his investigation of the homicide, was recalled to the stand by appellant and stated that he attempted to talk to deceased in the hospital and, in response to his question 'if it was one man,' the deceased 'nodded his head yes.' Brigdon further testified that the deceased 'nodded affirmatively' when asked if it was more than one man and that deceased 'nodded affirmatively to everything I asked him.' In addition, the deceased nodded yes to questions relative to whether 'two colored males and a female' were involved, and when asked if he could name the girl Brigdon stated 'we wasn't (sic) really sure what he said' but that he did seem to say Lynn or Linda.

James Barnwell, one of the officers who attempted to talk to the deceased in the hospital, testified on cross-examination by appellant that deceased was unable to speak but did nod his head when questions were asked him. According to Barnwell, the deceased nodded no when asked if Linda and two other named persons were involved in the attack on him, but did nod yes when asked if Williams had any part in the torture of him. The record reflects that the medical testimony adduced at the trial was in conflict relative to whether the deceased was able to answer questions calling for a yes or no answer.

The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have had an effect on the outcome of the trial. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Smith v. State, Tex.Cr.App., 516 S.W.2d 415; Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113; Means v. State, Tex.Cr.App., 429 S.W.2d 490.

The evidence of appellant's guilt was overwhelming and the evidence relative to other people's involvement was not only conflicting but came from the deceased at a time when there was serious doubt as to whether the deceased was able to comprehend the questions asked him. Assuming, arguendo, that appellant be correct in his contention that he should have been furnished such information prior to trial, we cannot conclude that such evidence would have exonerated appellant or have been of material importance to the defense. Jackson v. Wainwright, 5 Cir., 390 F.2d 288; Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; United States ex rel. Almeida v. Baldi, 195 F.2d 815, 33 A.L.R.2d 1407, cert. denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341; Curran v. State of Delaware, 3 Cir., 259 F.2d 707, cert. denied, 358 U.S. 948, 79 S.Ct. 355, 3 L.Ed.2d 353. See Goldstein, 'The State and the Accused: Balance of Advantage in Criminal Procedure,' 69 Yale L.J. 1149 (1960).

No error is shown.

Appellant next contends 'the trial court committed a reversible error in making comments upon the weight of the evidence and the conduct of trial counsel in questioning prosecution witnesses, in violation of Article 38.05, C.C.P.'

Appellant directs our attention to eighteen instances in the record in which he claims the court made improper comments.

This ground of error and the argument thereunder do not comply with the requirements of Art. 40.09, Sec. 9, V.A.C.C.P., which requires that the appellant's brief '. . . shall set forth separately each ground of error of which defendant desires to complain on appeal.' Washington v. State, Tex.Cr.App., 500 S.W.2d 485; Smith v. State, Tex.Cr.App., 481 S.W.2d 886. We recognize that Sec. 9 of Art. 40.09, supra, further provides that this Court shall review a ground of error ". . . notwithstanding any generality, vagueness or other technical defect that may exist in the language employed to set forth such ground of error" if "in light of arguments made in support thereof" it can be determined ". . . what point of objection is sought to be presented by such ground of error." Hunt v. State, Tex.Cr.App., 492 S.W.2d 540. Appellant directs our attention to numerous comments of the court without developing the context in which the same were made and concludes this ground of error by generally briefing the law relating to improper comments by a judge upon the weight of the evidence.

We cannot determine the specific ground of error relied upon by appellant and decline to further consider same because of the failure to comply with Art. 40.09, Sec. 9, V.A.C.C.P.

Appellant contends 'the prosecutor made several attempts to improperly impeach appellant's witnesses, even after appellant's objection was properly sustained and the prosecutor was instructed to adhere to the court's ruling: and, further, that the court improperly refused to grant appellant's motion for a mistrial.'

Appellant urges that the 'prosecutor attempted to impeach the witness by asking the witness concerning misdemeanor convictions not involving moral turpitude' and cites us to 'page 994 line 10 through page 999, line 8' without identifying or setting forth the complained-of conduct of the prosecutor in such a way that the objection can be identified and understood. Art. 40.09, Sec. 9, V.A.C.C.P.; Pitts v. State, Tex.Cr.App., 478 S.W.2d 555. No error is shown.

Appellant contends 'that the trial judge committed a reversible error in refusing to allow appellant to test the good faith of the prosecutor's impeachment of appellant's character by cross-examination and bill of exception.'

The record reflects that Mrs. Dorothy Jean Nash was called as a witness by appellant at the punishment stage of the trial and in response to a question on direct examination about knowing appellant's reputation in the community, the witness answered in the affirmative and stated 'everybody seemed to like him,' that appellant and his family were staying at her house, and that she would be willing to provide him with a place to stay and help him get started again when he gets out of prison.

On cross-examination, the witness was asked if she had heard that appellant was arrested for rape and fondling of a juvenile on December 19, 1967, and the witness answered 'No.' At this juncture, appellant asked that the jury be excused so that the State 'can show the good faith.' After testimony was concluded at the punishment stage of the trial, appellant requested the court to conduct a hearing on the prosecutor's good faith in asking the question. In response to the court's inquiry, the prosecutor stated that appellant's arrest record reflected that on December 19, 1967, appellant 'was arrested for rape and fondling a juvenile female and released to juvenile authorities.' The court then stated: 'The Court sees the record and the Court holds that the State's attorney acted in good faith.' Appellant requested that he be allowed to cross-examine the prosecutor, the request was denied by the court, and such denial forms the basis of appellant's contention.

Appellant argues that the prosecutor could not cross-examine appellant's character witness by asking have you heard questions which related to offenses committed when appellant was a juvenile.

V.T.C.A. Family Code, Section 51.13(b) (effective January 1, 1974), like its forerunner, Art. 2338--1, Sec. 13(e), V.A.C.S., prohibits...

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