Mock v. State, 08-91-00406-CR

• Decision Date: 30 December 1992
• Docket Number: No. 08-91-00406-CR,08-91-00406-CR
• Citation: 848 S.W.2d 215
• Parties: David K. MOCK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 215

848 S.W.2d 215

David K. MOCK, Appellant, v. The STATE of Texas, Appellee.

No. 08-91-00406-CR.

Court of Appeals of Texas,

El Paso.

Dec. 30, 1992.

Discretionary Review Refused

May 12, 1993.

Thomas S. Morgan, Midland, for appellant.

J.W. Johnson, Jr., Dist. Atty., Ft. Stockton, for appellee.

Before KOEHLER, BARAJAS and LARSEN, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a judgment of conviction for the offense of attempted capital murder. Trial was by jury. Upon a finding of guilty, the jury assessed punishment, as enhanced, at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. In ten points of error, Appellant challenges the judgment of conviction. Specifically, Appellant challenges the trial court's rulings as to the indictment, a peremptory strike, the admission of evidence, the jury charge and the prosecutor's conduct. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

The extensive record in the instant case shows that on December 11, 1990, Appellant was patronizing Sandy's Lounge, a popular night spot in Fort Stockton, Texas. Appellant, identified by the numerous tattoos on each of his arms, remained on the premises for approximately twenty to thirty minutes prior to leaving at about 8 p.m. Shortly after Appellant left the bar, an individual was seen outside the bar "messing" with vehicles parked at the bar. The individual, seen outside with a gun, was further seen leaving the parking lot in a small light-colored pickup truck. After the individual left the scene, another bar patron went outside to inspect his vehicle and discovered that a tire tool or screwdriver had been used to pry open the small air vent window of his pickup truck and further discovered that his .22 caliber rifle was missing from his vehicle. Local law enforcement officers were notified of the burglary of the vehicle. Pecos County Sheriff's Deputy Donald Stockburger was dispatched to Sandy's Lounge in reference to the burglary of the vehicle. Additionally, law enforcement officers were given a description of Appellant as well as the small light-colored vehicle which had earlier left the scene.

The record further establishes that Fort Stockton Police Officer Joe Pasqua, in responding to the police radio transmission of the description of the vehicle as well as of Appellant, saw the vehicle traveling through Fort Stockton. Officer Pasqua testified that the sole occupant of the vehicle attempted to cover his face with his hand to avoid detection. Officer Pasqua made radio communication with Deputy Stockburger and advised him that he was observing the vehicle in question and requested backup. Officer Pasqua testified that Appellant's vehicle turned into a dark, unlit area behind a local motel on the west side of Fort Stockton and suddenly came to a stop. Appellant immediately exited his vehicle and began to approach Officer Pasqua. Officer Pasqua further testified that as Appellant approached him, he noticed a screwdriver in Appellant's waistband area. Officer Pasqua removed the screwdriver from Appellant's waistband and awaited the arrival of Deputy Stockburger.

The record further establishes that upon the arrival of Deputy Stockburger, Officer Pasqua began a weapons frisk after first directing Appellant to place his hands on the hood of the patrol car and spread his feet. During this process, Appellant withdrew a pistol and dropped it on the ground. A struggle ensued after Officer Pasqua attempted to move Appellant away from the pistol. The record further reveals that during the struggle, gunfire erupted. Officer Pasqua withdrew his revolver and returned fire while still on the ground on his backside. ¹ Appellant got back into his vehicle and drove off.

Appellant was pursued by Corporal Dale Seago of the Fort Stockton Police Department, who arrived at the scene immediately after the shooting. Corporal Seago pursued Appellant's vehicle until it jumped a curb, collided with a telephone pole and came to a stop. Appellant exited his vehicle and was apprehended.

Appellant was indicted in the 112th Judicial District Court of Pecos County, Texas in Cause No. 1731 for the attempted capital murder of Fort Stockton Police Officer Joe Pasqua. Additionally, Appellant was indicted in the 112th Judicial District Court of Pecos County, Texas in Cause No. 1732 for the attempted capital murder of Pecos County Sheriff's Deputy Donald Stockburger. It is from his conviction for the attempted capital murder of Officer Joe Pasqua in Cause No. 1731 that Appellant has perfected his appeal. ²

II. DISCUSSION

In Point of Error No. One, Appellant argues the trial court erred in denying his motion to consolidate the trials for the offenses alleged in both the attempted capital murders of Fort Stockton Police Officer Joe Pasqua and Pecos County Sheriff's Deputy Donald Stockburger. Citing Guia v. State, 723 S.W.2d 763 (Tex.App.--Dallas 1986, pet. ref'd), Appellant urges that the offenses were all part of the same "criminal episode" as defined in Tex.Penal Code Ann. § 3.01 (Vernon 1974) and that Section 3.02(a) affords him an absolute right to consolidation of the offenses. ³ We find Appellant's reliance on Guia to be misplaced, and without deciding whether or not the offenses constitute the same "criminal episode," we further find that a criminal defendant, charged with multiple criminal offenses, has no statutory right to consolidated trials for those multiple crimes which the defendant is alleged to have committed.

In Guia v. State, the defendant was charged in one indictment with the offense of indecency with a child and in a second indictment with the offense of aggravated sexual assault. In a single trial conducted before a jury, the defendant was convicted of both offenses. The defendant in Guia asserted that the trial court erred in denying his motion to sever. The Dallas Court of Appeals agreed, holding that in the absence of an agreement to consolidate, a criminal defendant enjoys the absolute right to separate trials. Id. at 768, citing Royal v. State, 391 S.W.2d 410, 411 (Tex.Crim.App.1965); see also Tex.Penal Code Ann. § 3.04(a) (Vernon 1974). Moreover, Tex.Penal Code Ann. § 3.02(a), cited by Appellant as statutory authority mandating consolidation, is merely permissive in nature. See Grice v. State, 635 S.W.2d 890 892 (Tex.App.--Dallas 1982, pet. ref'd). Since the statute is not mandatory, an accused is not entitled to consolidation of offenses, as a matter of right, and the trial court did not abuse its discretion by failing to grant Appellant's motion to consolidate. Id.

In the State of Texas, responsibility for criminal prosecutions is vested in the district and county attorneys. See Meshell v. State, 739 S.W.2d 246, 254 (Tex.Crim.App.1987); Ramirez v. State, 842 S.W.2d 796 (Tex.App.--El Paso 1992, n.pet.h.); State v. Gray, 801 S.W.2d 10, 11 (Tex.App.--Austin 1990, no pet.). In the instant case, the decision to consolidate or not to consolidate Appellant's indictments for attempted capital murder was a matter of strategy, tactics and judgment decided upon by the District Attorney for the 112th Judicial District, subject only to an objection and motion to sever filed by Appellant. The District Attorney chose not to consolidate. Accordingly, Point of Error No. One is overruled.

In Point of Error No. Two, Appellant challenges the trial court's refusal to include the lesser included offense of reckless conduct in the court's charge to the jury. An accused is entitled to have lesser included offenses submitted to the jury if: (1) the lesser offense is included within the proof necessary to prove the offense charged; and (2) the record contains some evidence that if the accused is guilty, he is guilty only of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981). While reckless conduct may be a lesser included offense of attempted capital murder, submission of the issue is required only if the record contains some evidence that Appellant, if guilty, is guilty only of the lesser offense of reckless conduct. Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986). "A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury." Tex.Penal Code Ann. § 22.05(a) (Vernon 1989).

Examination of the record in the instant case reveals that Appellant's strategy at trial was to justify his act of shooting the law enforcement officers by relying upon his testimony that he fired in self-defense only after he had been shot by one of the officers. Regardless of the veracity of Appellant's defensive theory, which was effectively disregarded by the jury as evidenced by their verdict of guilty, the consequence of Appellant's intentional act of shooting the officers was that both officers did in fact suffer serious bodily injury. Therefore, the evidence clearly illustrates that Appellant's intentional conduct went well beyond placing another in imminent danger of serious bodily injury. Once Appellant discharged his pistol and shot the officers, they were no longer merely in imminent danger of serious bodily injury--they in fact suffered the bullet wounds which gave rise to the indictments for the offense of attempted capital murder. Consequently, the record wholly fails to establish that Appellant, if guilty, was guilty only of reckless conduct. Gibbs v. State, 819 S.W.2d 821, 831 (Tex.Crim.App.1991); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985).

Appellant cites Hayes v. State, 728 S.W.2d 804, 809-10 (Tex.Crim.App.1987) as authority in support of error being based on a trial court's failure to submit the reckless conduct charge. Hayes, however, is distinguishable from the instant case in that the defendant in Hayes testified "that the actual discharge of the gun was accidental...." Hayes, at 810. In the instant case, Appellant testified he believed his use of deadly force...