Murdock v. State

• Decision Date: 04 August 1992
• Docket Number: No. 6-91-070-CR,6-91-070-CR
• Citation: 840 S.W.2d 558
• Parties: Randle Dwayne MURDOCK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 558

840 S.W.2d 558

Randle Dwayne MURDOCK, Appellant, v. The STATE of Texas, Appellee.

No. 6-91-070-CR.

Court of Appeals of Texas Texarkana.

Aug. 4, 1992.

Rehearing Denied Sept. 29, 1992.

Discretionary Review Refused

Feb. 3, 1993.

Dick DeGuerin, Houston, for appellant.

John B. Holmes, Dist. Atty., Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Randle Dwayne Murdock appeals from his conviction on a charge of illegal investment. He was found guilty, and his punishment was assessed at twenty-five years' confinement and a $300,000 fine.

Murdock brings seventeen points of error that can be grouped into six major areas. He contends (1) that he was denied his right of confrontation under the United States and Texas Constitutions and TEX.CODE CRIM.PROC.ANN. arts. 1.05, 1.25 (Vernon 1977) because the trial court erred in failing to suppress audio tapes containing inadmissible hearsay statements by his alleged codefendants and because his cross-examination of a witness was improperly limited; (2) that the trial court committed reversible error by admitting evidence of extraneous offenses; (3) that the trial court erred by denying his request for evidence in the possession of the State about an offense allegedly committed by the State's witness; (4) that the trial court erroneously admitted evidence seized in violation of his constitutional rights; (5) that the trial court failed to instruct the jury of the permissible conditions of probation that the court could impose; and (6) that he was denied his right to due process of law and a fair trial by the trial court's failure to consider evidence in support of his motion for new trial, failure to set aside a verdict obtained through perjured testimony, and failure to set aside a verdict obtained through prosecutorial misconduct.

The State alleges that Murdock was convicted for providing money for the purchase of cocaine by a conspiracy consisting of Murdock, Rocky Short, Diana Yarcy, and Nadir Shah. The group was infiltrated by Houston Police Department Officer Ybarbo. Officer Ybarbo met with the codefendants except for Murdock on April 14 and recorded his conversation with them. The transcription of this recording was entered into evidence and is in the record. Murdock was not a participant in any conversation shown by the tape. However, he was discussed at length by the participants in the conversation. After they discovered that Murdock was coming, the undercover officer asked them in what type of car Murdock would come and was told that he would come either in a Porsche or a convertible Mustang. Murdock appeared in his red Mustang convertible along with Khurram Shah (Nadir's cousin), and Nadir Shah pulled up in another vehicle. Khurram Shah carried a red boot containing $14,000 from the car to the alleged co-conspirators' apartment and returned empty-handed. He and Murdock then drove away. They were arrested immediately thereafter. Approximately $1,100 in cash was found in the trunk of his car. Simultaneously, Nadir Shah and the other conspirators were arrested, and the $14,000 was recovered from them. Murdock was tried separately from the other individuals involved, one of whom testified for the State.

We first address Murdock's contention that the trial court committed federal and state constitutional error and state statutory error by admitting the tape recording made by the undercover officer during his conversations with co-conspirators into evidence.

FEDERAL CONSTITUTIONAL COMPLAINTS

Although Murdock does not specify which constitutional right was allegedly violated, we presume from the case authority cited that he is alleging that the admission violated his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution. The Confrontation Clause of the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Supreme Court held in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), that the requirements for admission under Federal Rule of Evidence 801(d)(2)(E) were identical to the requirements of the Confrontation Clause. ¹ The Court held that such a recorded statement by co-conspirators is admissible when the proponent of the statements shows by a preponderance of the evidence (including the recorded statement) that a conspiracy existed. The Court found that the trial judge could consider the offered hearsay statements so that the proponent need not rely solely on independent evidence to show the existence of the conspiracy. In doing this, the Court rejected the argument that such reliance constituted impermissible "bootstrapping."

As pointed out by the Supreme Court in Bourjaily, first, an out-of-court statement such as this is presumed unreliable. However, that presumption may be rebutted by appropriate proof. Also, individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. It is therefore possible for presumptively inadmissible hearsay testimony such as that in the present case to be found admissible if the other evidence presented in the case sufficiently corroborates its content. Bourjaily, 483 U.S. at 180, 107 S.Ct. at 2781, 97 L.Ed.2d at 155. The other evidence in this case consists of the following:

(1) The undercover officer was told that the money to purchase the cocaine would be brought to a designated apartment complex in a red Mustang convertible.

(2) Murdock and Khurram Shah appeared in a red Mustang convertible in the parking lot of that apartment complex.

(3) Khurram carried a boot containing $14,000 from that car to the apartment of one of the alleged conspirators.

(4) Nadir Shah testified that the money in the boot came from Murdock.

(5) The boot, and the money contained therein, was shown to the undercover officer in and preparation for completing the purchase.

(6) Murdock was arrested in his car shortly after leaving the parking lot of the apartment complex.

The tape contains conversations repeatedly referring to Randy (Randle) as the man providing the money for the purchase, describing his expensive jewelry, and efforts to soothe the jittery undercover officer by assuring him of Randy's ability to make the continuing major drug buys that they were discussing. The tape reflects their surprise that Randy came because the Shahs usually delivered the money. Nadir Shah testified that Murdock was the driving force behind the planned purchase and that he provided the money for the purchase.

The evidence is adequate to meet the preponderance of the evidence standard necessary under the federal test to determine whether a conspiracy existed.

STATE CONSTITUTIONAL COMPLAINTS AND APPLICATION OF TEXAS

RULES OF EVIDENCE

Since the Court of Criminal Appeals has held that federal analysis of United States constitutional guarantees is not necessarily applicable to questions of state constitutional guarantees, we must also examine the guarantee provided by TEX.CONST. art. I, § 10. Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). The Confrontation Clause in the present Texas Constitution provides:

§ 10. Rights of accused in criminal prosecution

In all criminal prosecutions the accused ... shall be confronted by the witnesses against him.

As recently discussed by the Court of Criminal Appeals in Long v. State, 742 S.W.2d 302, 309 (Tex.Crim.App.1987), overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App.1990), confrontation was never considered as an absolute. Its main and essential purpose was to secure for the accused the opportunity for cross-examination. The Court recognized that certain exceptions have always existed in the right to cross-examine one's accusers. Certain types of information are normally considered accurate and valid to the extent that the purpose of cross-examination would not be served by subjecting it to cross-examination. Although the language of TEX.CONST. art. I, § 10 and U.S. CONST. amend. VI is somewhat different, the guarantees are quite similar because they go to the source of the right of confrontation: English common law. ² Counsel incorrectly cited two cases during trial as specifically stating that review under the Texas Constitution has not changed since Bourjaily was rendered. We have reviewed the cases cited. Williams v. State, 790 S.W.2d 643 (Tex.Crim.App.1990), does not discuss this problem at all, and Sherwood v. State 732 S.W.2d 787, 796 (Tex.App.--Fort Worth 1987, no pet.), was rendered on July 9, 1987, two weeks after the Bourjaily opinion. It neither discussed the Bourjaily opinion nor acknowledged its existence.

Although Heitman, 815 S.W.2d 681, allows the courts to apply Texas constitutional guarantees in a broader manner than the federal, we see no reason to do so in this case. The underlying guarantees of the right to cross-examination that were contemplated by the writers of the Texas Constitution have not been unfairly compromised by the admission of this evidence. Hearsay testimony may be admitted if the other evidence presented sufficiently substantiates its content. We have previously reviewed the other evidence presented in this case. That evidence indicates that the tape recording was made in such a manner as to provide it with a level of authenticity and trustworthiness that is adequate to support its admission. Although the right to cross-examination has been limited by so admitting the evidence, the search for truth which underlies the admission of all evidence has not been compromised by its admission.

This parallels the analysis used by the United States Supreme Court in its review of the Confrontation Clause and its application through a rule of evidence identical to TEX.R.CRIM.EVID. 801(e)(2)(E). ³ The appellant has not suggested...