Morin v. State

• Decision Date: 14 September 1983
• Docket Number: No. 69028,69028
• Parties: Stephen Peter MORIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 265

682 S.W.2d 265

Stephen Peter MORIN, Appellant, v. The STATE of Texas, Appellee.

No. 69028.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1983.

Rehearing Denied Jan. 9, 1985.

Peter Torres, Jr., John Keith Alaniz, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty. & Susan D. Reed, Steve Vacek and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was indicted in Bexar County for the offense of capital murder. He was charged with the murder of Carrie Scott while in the course of committing robbery. After appellant's request for a change of venue was granted, the cause was transferred to Jefferson County. Appellant pled guilty. The trial judge instructed the jury to return a verdict of guilty. After the jury complied, evidence was heard at the punishment state of trial. The jury answered the special issued affirmatively and appellant was sentenced to death. Appellant appeals on nine grounds of error. The sufficiency of the evidence is not challenged.

First, appellant contends that the trial court erred in overruling his motion to dismiss the indictment because: the grand jury failed to inquire into all offenses liable to indictment, acting instead as a rubberstamp for the District Attorney's office; appellant was denied an opportunity to appear before the grand jury; the indictment is vague and contradictory; and the indictment calls for a punishment that is contrary to the Eighth and Fourteenth Amendments to the United States Constitution because the punishment mandated is cruel and unusual.

Initially, appellant's ground of error is multifarious and presents nothing for review. Art. 40.09, V.A.C.C.P.. Bodiford v. State, 630 S.W.2d 847 (Tex.App.1982); Wilson v. State, 581 S.W.2d 661 (Tex.Cr.App.1979); Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979); Wells v. State, 576 S.W.2d 857 (Tex.Cr.App.1979). Given the gravity of the sentence, however, we shall deal with each of appellant's claims under his first ground of error.

Appellant's claim that the grand jury failed to inquire into all offenses liable but acted only as "a rubberstamp for the District Attorney's office" is without merit since the allegation is unsubstantiated by any reference to a transcription of the grand jury proceedings. Moreover, no evidence was offered at trial on the issue. We cannot accept as fact allegations in briefs or motions that are not supported by the record. Art. 40.09, V.A.C.C.P.; Hawkins v. State, 628 S.W.2d 71 (Tex.Cr.App.1982), citing Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978).

Appellant also complains that the court improperly denied him an opportunity to appear before the grand jury. An accused does not have the constitutional right to appear in person or by counsel before the grand jury. Moczygemba v. State, 532 S.W.2d 636, 638 (Tex.Cr.App.1976), and cases cited therein. Since appellant has no right to appear before the grand jury, the trial judge did not err in denying his request.

Next, appellant challenges the indictment as being vague and contradictory. He contends that the indictment is duplicitous since it alleges that the murder occurred while appellant was "committing and attempting to commit robbery." Faced with a similar indictment, we have previously resolved this issue adverse to appellant's claim. Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). Appellant also attacks the indictment because it fails to allege all of the elements of robbery. In Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), we held that under the new Penal Code, an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense. Id., 542 S.W.2d at 658, and cases cited therein.

Appellant's last attack on the indictment under his first ground of error is directed at the death penalty: he contends that the death penalty is cruel and unusual and is, therefore, contrary to the Eighth and Fourteenth Amendments to the United States Constitution. We rejected this contention in Burns, supra, and Livingston, supra, 542 S.W.2d at 662. The United States Supreme Court also rejected this contention in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh. denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). Accordingly, we overrule appellant's first ground of error.

In his second and third grounds of error, appellant alleges that the trial court erred in overruling his Motion to Suppress and in admitting the identification testimony of two witnesses because their testimony was tainted and based upon suggestive identification procedures, i.e., appellant's picture had been seen on television by the witnesses prior to identification. Appellant's claim is without merit for two reasons. First, appellant waived any error committed regarding the identification testimony of the two witnesses. A plea of guilty, voluntarily and understandingly made, waives all nonjurisdictional defects, including deprivations of federal constitutional due process. Wheeler v. State, 628 S.W.2d 800 (Tex.Cr.App.1982); Velasquez v. State, 608 S.W.2d 674 (Tex.Cr.App.1980); McKelvey v. State, 570 S.W.2d 951 (Tex.Cr.App.1978); Runo v. State, 556 S.W.2d 808 (Tex.Cr.App.1977); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972). Moreover, error in admission of identification evidence is not jurisdictional in nature. Ex Parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982), cert. denied 32 Cr.L.R. 4098. Since appellant entered a plea of guilty, and the plea was made voluntarily and understandingly, ¹ any error committed by the trial court regarding identification was waived.

Second, in addition to the identification testimony given by the two witnesses challenged by appellant, a third witness also identified appellant and placed him at the scene of the offense. Her testimony was not challenged. Under our holding in Williams v. State, 477 S.W.2d 885 (Tex.Cr.App.1972), any error committed by admission of the identification evidence elicited from the two witnesses, objected to by appellant, was rendered harmless when the third witness identified appellant without objection. Accordingly, we overrule appellant's second and third grounds of error.

In his fourth and fifth grounds of error, appellant contends that the trial court erred in directing and instructing the jury to return a verdict of guilty, and in denying appellant's requested instructions to the jury at the guilt stage of trial. Appellant claims that a directed verdict is prohibited in capital cases for three reasons. First, Art. 36.14, V.A.C.C.P., requires that "in each felony case ... the judge shall before the argument begins, deliver to the jury, except in pleas of guilty where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence ...." ² Since a jury cannot be waived in a capital case under Art. 1.13, V.A.C.C.P., the trial judge, according to appellant, commits fundamental error if he refuses to instruct the jury on the law and directs the jury to find the defendant guilty. Second, appellant contends that the trial court deprived appellant of a trial by jury because the court's instruction amounted to a jury waiver. Third, appellant contends that there is no procedure providing for the direction of a guilty verdict in capital cases under Texas laws.

Appellant's initial contention that since a jury cannot be waived in a capital case, Art. 36.14, V.A.C.C.P., requires that the judge instruct the jury on the law overlooks the fact that, in the instant case, the judge did instruct the jury on the law when he told them to return a verdict of guilt. The charge read to the jury indicated that appellant had pled guilty to the charge, that appellant was mentally competent, that the plea had been made freely and voluntarily, and that the court had received the plea. The charge also contained the statement "You are bound to receive the law from the Court which is herein given to you and be governed thereby." The record, therefore, shows compliance with Art. 36.14 in that the jury was given instruction on the law, applicable to the case without comment on the weight of the evidence. Fairfield v. State, 610 S.W.2d 771, 780 (Tex.Cr.App.1981), and cases cited therein.

Appellant's claims that the judge's instructing action in a verdict deprived appellant of trial by jury and that instructed verdicts are not provided for in capital cases are also without merit. In Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980), cert. denied 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 431, reh. denied 453 U.S. 923, 101 S.Ct. 3160, 69 L.Ed.2d 1005 (1981), the defendant pled guilty to the offense of capital murder, the trial judge directed a verdict of guilt, and the jury subsequently assessed punishment at death. We noted no fundamental error in directing the verdict of guilt in the case, nor do we find such error now. A directed verdict, therefore, is permissible in capital cases where the defendant pleads guilty, and the plea is properly accepted by the court. Furthermore, the defendant is not deprived of a trial by jury when a verdict is directed pursuant to a guilty plea since the jury receives evidence at the punishment stage and must determine whether the defendant is to receive life imprisonment or the death penalty. Accordingly, appellant's fourth and fifth grounds of error are overruled.

In his sixth ground of error, appellant contends that the trial court erred in permitting the introduction into evidence of extraneous offenses involving the killing of Janna Bruce, the attempted killing...