Mott v. State

• Decision Date: 17 November 1976
• Docket Number: Nos. 51915,51916,s. 51915
• Citation: 543 S.W.2d 623
• Court: Texas Court of Criminal Appeals
• Parties: Ronald Edward MOTT, Appellant, v. The STATE of Texas, Appellee. Ezell Thomas ROADY, Appellant, v. The STATE of Texas, Appellee.

Page 623

543 S.W.2d 623

Ronald Edward MOTT, Appellant, v. The STATE of Texas, Appellee.

Ezell Thomas ROADY, Appellant, v. The STATE of Texas, Appellee.

Nos. 51915, 51916.

Court of Criminal Appeals of Texas.

Nov. 17, 1976.

Rehearings Denied Dec. 15, 1976.

James A. Mattox and Vincent W. Perini, Dallas, for Mott.

Charles W. Tessmer and Ronald L. Goranson, Dallas, for Roady.

Henry Wade, Dist. Atty., Steve Wilensky, Jon Sparling, John Wm. Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

These are appeals from convictions for aggravated assault. Appellants were tried jointly. The jury assessed each appellant's punishment at seven years and one day confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Briefly, the State's evidence shows that the complaining witness, Terry Snider, had words with the appellants in a nightclub in Dallas. As the result of mutual verbal provocation, appellant Mott struck Snider on the head with a beer mug or pitcher. Falling from the blow by appellant Mott, Snider was then struck on the face with a glass by appellant Roady. As a result of the latter blow, Snider's nose, face and throat were cut. In being treated for his injuries, Snider received approximately 40 stitches to his face. He sustained permanent disfigurement to an eyelid and damage to his voice box.

Although different witnesses, both State's and defense, gave different versions of the assault, the only point of disagreement concerned who struck the first blow, Mott or Roady.

Appellants initially contend that the trial court erred in denying them the right to examine the grand jury testimony of Snider. Specifically, appellants contend that there was some variation from the testimony Snider gave to the grand jury and the testimony he gave at the examining trial and upon direct examination at the trial on the merits. The grand jury testimony was sealed and brought forward in the record to this Court. We have examined such testimony. We cannot agree that the inconsistencies, if any, were such as to reflect error in the trial court's action in refusing to make the grand jury testimony available for cross-examination. We fail to see how appellant was harmed. Brown v. State, 475 S.W.2d 938, 948 (Tex.Cr.App.1971). Furthermore,

'The production of the grand jury testimony, of course, lies within the sound discretion of the trial court and the accused may be permitted to inspect such testimony where 'some special reason' exists or where a 'particularized need' is shown so as to outweigh the traditional policy of grand jury secrecy.' (Citations). Id.

As in Brown, we cannot conclude that the appellant has shown a 'particularized need' for the grand jury testimony so as to reflect that the trial court abused its discretion in refusing to order its production.

Appellants' ground of error number one is overruled.

Appellant Mott contends that he was denied effective assistance of counsel as a result of the trial court's refusal to allow him to inspect the grand jury testimony of Snider. Since we hold the trial court did not err in such refusal, it necessarily follows that this ground of error must also be overruled.

Both appellants contend that the trial court's charge was fundamentally defective because it allowed a conviction for an offense different than the one charged in the indictment. The indictment, omitting the formal parts, alleges that each appellant '. . . did . . . then and there knowingly And intentionally cause serious bodily injury to another, namely; Terry L. Snider, by hitting him with a glass . . ..' (Emphasis added) The complained of portion of the court's charge permitted the jury to find each appellant guilty if they found that they acted '. . . intentionally Or knowingly . . ..' (Emphasis added).

We have held that such a charge is not fundamentally erroneous. Neither appellant objected to the court's charge. Nothing is presented for review. Moreno v. State, 541 S.W.2d 170, 173 (Tex.Cr.App.1976).

Next, the appellants contend that the court's charge was fundamentally erroneous because it contained an abstract instruction on the law of parties without applying the law to the facts. Neither appellant objected to the court's charge in the manner provided for by Art. 36.14, V.A.C.C.P. Nothing is presented for review. Louden v. State, 491 S.W.2d 168, 169 (Tex.Cr.App.1973).

Both appellants contend that there is a fatal variance between the allegations in the indictment and the proof. The indictment alleges that each appellant caused bodily injury to Snider by 'hitting' him with a glass. The proof shows Snider's injuries occurred as a result of 'cutting' with a glass. Since the proof does show that Snider was hit by each of the appellants and received cuts as a result thereof, these contentions are without merit and overruled.

Appellant Mott contends that the trial court erred in failing to grant him a new trial when a State's witness recanted a material part of her testimony. Appellant argues this was favorable to him and the prosecution did not inform him of such fact.

The record reflects that Debbie Jackson testified that she was with the appellants on the occasion in question and that she did not see defense witness John Butler at that time. Butler testified that he had spoken to Jackson that evening. At the hearing on the motion for new trial, Jackson testified she remembered she had seen Butler and told one of the prosecutors about this. While the prosecutor should have informed appellants' attorney about this, we do not feel that reversible error is present. Newly discovered testimony in the nature of impeachment will not, ordinarily, require a new trial. Tyson v. State, 142 Tex.Cr.R. 152, 151 S.W.2d 841, 842 (1941). No abuse of discretion has been shown. Williams v. State, 504 S.W.2d 477, 482 (Tex.Cr.App.1974).

Appellant Mott next contends that the trial court was in error when it refused to grant his motion for new trial on the grounds that the prosecution used improper tactics on a defense witness at the motion for new trial hearing. Mott contends such error amounted to a denial of due process.

Eight days prior to the scheduled hearing, the defense subpoenaed Debbie Jackson. Such subpoena called for her attendance at 2 p.m. on the day of the hearing. The prosecution, nevertheless, subpoenaed Debbie Jackson to appear at 9 a.m. that day. The State's subpoena application shows it was filed subsequent to the defense application. The record reflects that an investigator for the prosecutor, not an attorney, made the application for the subpoena.

One of the prosecuting attorneys testified at the motion for new trial that he had instructed the investigator to 'get them (defense witnesses) to the courthouse' so he could talk with them. He denied personal knowledge of the subpoenas but acknowledged he 'may have' authorized the investigator to issue the subpoenas and that he 'acquiesced in it.' He testified that he did interview Debbie Jackson before noon on the day of the hearing.

Debbie Jackson testified she came to the courthouse and interviewed with the prosecutor in the district attorney's office at 9:30 that morning because 'I had a subpoena to be in his office.' She further testified she was very upset at having been brought to the courthouse that morning and she admitting crying in the hallway prior to her testimony. She said that the investigator had told her over the telephone that she was to come in for the interview with the prosecutor, and that if she didn't she would be subpoenaed.

Article 24.03, V.A.C.C.P., provides, inter alia:

'. . . the defendant or his attorney or the State's attorney shall make written, sworn application to such clerk for each witness desired. . . . when a witness has once been served a subpoena, no further subpoena shall be issued for said witness.'

From the quoted portions of the above statute, it can be seen that the subpoena should not have been issued upon the application of one who is not either the defendant, his attorney, or the State's attorney. Furthermore, it should not have been issued because the witness Jackson had already been served with a subpoena. However, reversible error is not present. On cross-examination at the motion for new trial, the following exchange took place between the prosecutor and the witness Jackson:

'Q Okay, did the subpoena that you got coerce your testimony any way?

'A No.'

Appellants' ground of error is overruled.

Appellant Mott also contends that the prosecution intimidated defense witness Butler. Butler testified at the motion for new trial that prosecuting attorneys had passed him in the hall during a recess during the trial and one said, 'Get that smile off your face, you son of a bitch,' and another said, 'I think we ought to put him in jail.' However, one of the prosecuting attorneys took the stand at the motion for new trial and specifically denied both of the statements. No other testimony of the occurrence was presented. The trial judge did not abuse his discretion in failing to...