Paster v. State
| Decision Date | 24 July 1985 |
| Docket Number | No. 69220,69220 |
| Citation | 701 S.W.2d 843 |
| Parties | James Emery PASTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.
Appellant was convicted under an indictment which charged in pertinent part that appellant "on or about October 25, 1980, did then and there unlawfully, intentionally and knowingly cause the death of Robert Edward Howard, hereinafter styled the Complainant, by shooting the Complainant with a gun, and the Defendant committed the murder for remuneration and the promise of remuneration, namely, money."
At the outset appellant contends his statement was "obtained in violation of appellant's Sixth Amendment right to counsel."
Houston homicide detectives Williamson and Smith took the oral recorded statement from appellant while the accused was confined in a state prison in Alabama.
At the hearing on the admissibility of the confession appellant testified that upon the Houston officers entering the room, and at a time prior to the tape recorder being turned on, he told them he had been expecting them and "I immediately asked for an attorney." See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Appellant requested and was given a Jackson v. Denno hearing. While a number of reasons were advanced why the confession was not admissible, we are unable to find where he ever urged in the trial court that he requested counsel. An error presented on appeal must comport with the objection raised at trial. The error urged on appeal was not properly preserved for review. Gauldin v. State, 683 S.W.2d 411 (Tex.Cr.App.1984).
Further, Detective Williamson testified that appellant "never asked for a lawyer." Detective Smith testified that he did not recall that the appellant ever asked for a lawyer. Appellant contends in his brief that "only one of the [two] officers contradicted appellant" at the hearing. At the hearing on the voluntariness of the confession, the court is the judge of the credibility of the witnesses. The court's finding contrary to appellant's contention is supported by the evidence. Hawkins v. State, 613 S.W.2d 720 (Tex.Cr.App.1981); Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App.1982). No error is shown.
Appellant contends he was denied due process by the admission of "his audio statement in violation of Art. 38.22, Sec. 3(a)(1), V.A.C.C.P., in that all oral statements must be visually recorded and not simply audio."
The pertinent portions of Art. 38.22 provide:
In urging that all oral statements must also be visually recorded appellant points to the fact that all examples given in Art. 38.22, Sec. 3(a)(1) are visual recordings.
Since the term "electronic recording" is not defined in the statute such term is to be taken and understood in its "usual acceptation in common language." Art. 3.01, V.A.C.C.P. Webster's Third New International Dictionary defines "recording":
"1 a: the process of recording something esp. sound ... b: a period or session of recording something ... 2 a: what is recorded (as on a phonograph record, magnetic tape) ... b: a phonograph record, magnetic tape, or some other thing (as film, wire, one of the perforated rolls played by a player piano) on which sound or visual images have been recorded for subsequent reproduction ..."
The provision in Sec. 3(a)(4) that the statement will not be admissible unless "all voices in the recording are identified" tends to refute any interpretation that the recordings must be visually recorded. Logic dictates that an audio recording, rather than an audio-visual recording, would necessitate an identification of the voices reproduced theory.
We do not construe Sec. 3(a)(1) of Art. 38.22, supra, to exclude audio recordings, but rather to point out that the electronic recording "may include" certain named visual recordings. We reject appellant's contention that Art. 38.22, Sec. 3(a)(1), supra, requires that all oral statements be visually recorded.
Appellant contends "the 1981 amendment to V.A.C.C.P. Art. 38.22(3) is unconstitutional in that the caption to Senate Bill 121 which states 'an act relating to the admissibility in a criminal proceeding and preservation of a statement made by an accused as a result of or during a custodial interrogation' does not give readers fair notice of the subject matter contained in the bill." 1
The full text of the caption reads "An Act relating to the admissibility in a criminal proceeding and the preservation of a statement made by an accused as a result of or during a custodial interrogation; Section 3, Article 38.22, Code of Criminal Procedure, 1965, as amended."
Appellant bottoms his contention of failure to give readers fair notice of the subject matter or an omission of the caption to "indicate in any manner that the amendment applies to the introduction of oral and sign language statements in any phase of a criminal proceeding."
It appears to be appellant's position that our opinion in Ex parte Crisp, 661 S.W.2d 944 (Tex.Cr.App.1983) requires a holding that the instant caption fails to give "fair notice of its intent to a reasonable reader."
In Crisp this Court found that at best the bill referred to changes in the Controlled Substances Act while failing to mention changes in the Code of Criminal Procedure and Penal Code. The concurring opinion points out that the caption failed to give notice that the Controlled Substances Act was to be amended.
Art. III, Sec. 35, Constitution of the State of Texas, provides:
"No bill ... shall contain more than one subject, which shall be expressed in its title."
It is not urged or even suggested that the caption under attack herein modifies other statutes or subjects. Clearly, the infirmity in the caption in Crisp is not present.
A statute will not be held unconstitutional where its provisions relate, directly or indirectly, to the same general subject, have a mutual connection, and are not foreign to the subject expressed in the title. Robinson v. Hill, 507 S.W.2d 521 (Tex.1974); Babcock v. State, 668 S.W.2d 857 (Tex.App.--Austin 1984).
The introduction of oral or sign language statements in accordance with the provisions of Art. 38.22, Sec. 3 may not reasonably be said to be foreign, unrelated, different, unconnected, separate, or inappropriate to the expression contained in the caption.
When a statute is attacked under Art. III, Sec. 35, supra, the court should construe the statute liberally so as to uphold it if possible. Stein v. State, 515 S.W.2d 104 (Tex.Cr.App.1974).
Granted that "a somewhat stricter rule of confirmity of title to subject matter legislated on within an act is applied to amendments," Crisp v. State, supra, we find no merit in appellant's contention that the caption fails to give fair notice of the subject matter contained in the bill.
Appellant contends that the trial court erred "in overruling appellant's motion for mistrial when before the jury, his co-defendant, Gary Lewis LeBlanc stated that he and appellant took three lives."
On direct examination by the State of Gary Lewis LeBlanc, the following occurred which gives rise to appellant's ground of error:
The court instructed the jury to disregard the complained of testimony. Motion for mistrial was overruled.
Appellant was on trial for the capital murder of Robert Edward Howard. Earlier testimony elicited from the witness established that he had served as the intermediary in hiring appellant to kill Howard.
Appellant urges that the complained of testimony ties him to two extraneous murders. Appellant was not directly involved in the other murders by the testimony since the punishment in question related to the punishment assessed the witness. Assuming a logical inference is gleaned that he was involved we find no reversible error. The trial court's instruction to disregard rendered the testimony harmless, especially in light of the overwhelming evidence of appellant's guilt. 2 No reversible error is shown.
In appellant's fifth ground of error, he urges "the trial court erred in denying appellant's motion for mistrial based upon the prosecutor's improper argument and attempt to shift the burden of proof."
The following argument of the prosecutor gives rise to appellant's complaint:
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