Porter v. State

• Decision Date: 28 March 1979
• Docket Number: No. 57553,57553
• Citation: 578 S.W.2d 742
• Parties: Henry Martinez PORTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 742

578 S.W.2d 742

Henry Martinez PORTER, Appellant, v. The STATE of Texas, Appellee.

No. 57553.

Court of Criminal Appeals of Texas, En Banc.

March 28, 1979.

Ronald W. Aultman, Jerry J. Loftin and John M. Anderson, Fort Worth, All court appointed, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, Joe Shannon, Jr. and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of capital murder. The punishment was assessed at death.

Appellant contends that the trial court erred in permitting, over objection, at the punishment phase of the trial, the introduction of letters, reports, and documents from a federal parole officer's file pertaining to appellant's supervision and progress while on federal parole. We agree and reverse the judgment.

Appellant was convicted for the murder of Fort Worth police officer Henry P. Mailloux. Appellant fatally shot Mailloux on the morning of November 29, 1975, after Mailloux stopped him for investigation of three armed robberies. The State introduced evidence identifying appellant as the perpetrator of armed robberies having occurred on November 18, 24, and 28, 1975, in Fort Worth. In addition, there was evidence that appellant had three prior felony convictions and therefore faced a possible life sentence as an habitual criminal should he be convicted again.

Appellant, who was shot during an exchange of gunfire with Mailloux, testified that he pulled his gun only after Mailloux shot him without provocation, and that the gun accidentally discharged during a subsequent struggle. Appellant fled from the scene following the shooting, and was arrested in San Antonio on December 1.

At the punishment phase of the trial, the State called J. M. McIntyre, a United States probation-parole officer for the Western District of Texas. McIntyre testified that, though he did not know appellant, his office in San Antonio had supervised appellant while he was on parole. McIntyre further testified that a record had been kept of his office's contacts with appellant. Thereafter, the prosecutor attempted to elicit testimony from the witness, based on the records, as to the parole office's first contact with appellant. The court sustained appellant's objection on the grounds of hearsay and that the witness was "not the person in charge."

The prosecutor then asked the witness to remove from the file he had brought with him and clip together "certain records" which "pertain to contacts with this man" had by the parole office. These selected materials were marked as State's Exhibit No. 53 and a photocopy of the exhibit was offered in evidence. Appellant objected to the introduction of the exhibit on several grounds, among them that the proper predicate had not been shown for the admissibility of the exhibit, the exhibit was "hearsay upon hearsay letters to individuals and letters as copies in the file," and the exhibit denied the rights of cross-examination and confrontation. This objection was sustained.

The prosecutor thereafter questioned McIntyre regarding the dates and reasons for the various contacts between appellant and his office. Appellant declined to cross-examine McIntyre, and the witness was excused.

Following a recess, McIntyre was recalled by the State. The materials he had removed from his file, now marked as State's Exhibit No. 54, were again offered in evidence. This time, the materials were admitted, over appellant's objection that he was being denied his right of confrontation. The prosecutor then had McIntyre identify each of the documents in the exhibit and read to the jury certain passages therefrom. During this testimony, appellant repeatedly objected on the grounds of hearsay and denial of confrontation.

State's Exhibit No. 54 consists of five documents. The first is a copy of a letter dated February 20, 1973, from Paul F. Cromwell, Jr., a United States probation officer in San Antonio, to Harry Ebberhardt, a counselor at a San Antonio drug abuse treatment center known as the Patrician Movement. Among other things, this letter refers to appellant's "aggressive nature," and quotes unnamed psychologists for the proposition that appellant has "a psychopathic personality" and "indications of paranoid schizophrenic behavior."

The second document is a copy of a letter dated September 26, 1973, from Robert E. Adamina, Jr., a United States probation officer in San Antonio, to Steve D. Johnston, Parole Executive, United States Board of Parole in Washington, D.C. This letter details appellant's performance while under the supervision of the San Antonio office, including his drug usage and inability to successfully participate in various rehabilitation programs. The writer of the letter concludes that "(t)hese events would indicate this individual's inability and/or desire to maintain a drug free status in the community and abide by the terms of his parole . . ." and recommends that appellant's federal parole be revoked.

The third document is a copy of a warrant application dated October 23, 1973, recommending that appellant's federal parole be revoked due to his admitted use of narcotics and failure to participate in treatment programs. The warrant application is signed by Steve D. Johnston, to whom the letter of September 26, referred to above, is addressed.

The fourth document is a copy of another letter to Steve D. Johnston. This letter is dated January 28, 1974, and is from Harvey H. Whitehill, a United States probation officer in San Antonio. In this letter, Whitehill refers to a conversation he had with appellant, during which appellant admitted being addicted to heroin.

The fifth document is a copy of a "Terminal Report" from Kerper House in San Antonio, signed by Bonnie J. Cromwell, Director. Kerper House is apparently another drug addiction treatment facility. A portion of this report reads as follows "Program Progress :

"Mr. Porter resided at the Kerper House for less than a week. He fixed with heroin three days after his arrival. He was a disruptive figure to the program and demonstrated 'paranoia' at a group counseling session. Due to his drug addiction and recidivist practices, progress was not made toward the accomplishment of any of the goals set for Mr. Porter.

"Resocialization :

"Mr. Porter's transition back into the community was not a success . . . . He expressed a complete feeling of 'helplessness' in regards to his drug usage. He plead (sic) for 'another chance' and seems to want badly to go straight; yet at the same time admitted to 'uncontrollable' behavior.

"Prognosis :

"Based on Mr. Porter's participation in our program and knowledge of his previous arrests and penitentiary record, it is felt by our Staff that his future looks grim . . . His employment, educational, social, and familial history is extremely poor and this is apparently due to his serious narcotic addiction. He demonstrates a number of serious mental and emotional handicaps. Rehabilitative rating is very poor."

On cross-examination, defense counsel elicited from the witness that his access to the writings in issue was equal to that of twelve other parole officers, eight secretaries, the Deputy Director of the San Antonio office, and the "Chief" of the Western District Parole Department in El Paso. When asked whether he personally kept the files, the witness stated that the "probation department is the custodian of records for the United States Courts as well as the Board of Paroles involving an individual under the supervision of either . . ."

The right to cross-examine witnesses is implicit within the right to confrontation provided by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1967); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The right to confront and cross-examine witnesses has also been held to be essential to due process and a fair trial within the provisions of the Fourteenth Amendment to the Constitution of the United States. E. g., In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) and Chambers v. Mississippi, supra.

However, the rights of confrontation and cross-examination are not absolute. Chambers v. Mississippi, supra; Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Dutton v. Evans, supra; California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Confrontation and cross-examination are not essential where the evidence bears the indicia of reliability sufficient to insure the integrity of the fact finding process. Dutton v. Evans, supra; Mancusi v. Stubbs, supra; Kay v. United States, 255 F.2d 476 (4th Cir. 1958). Cf. Chambers v. Mississippi,supra; California v. Green, supra; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

If the rights of confrontation and cross-examination were absolute, none of the exceptions to the hearsay rule would apply in criminal cases. In almost every criminal case, evidence is admitted under one of the exceptions to the hearsay rule. Official written instruments are admissible as one of the well recognized exceptions. They are admissible in this state under the provisions of Article 3731a, V.A.C.S., which reads, in pertinent part:

"Sec. 2. Any written instrument which is permitted or required by law to be made, filed, kept or recorded (including but not limited to certificate, written statement, contract, deed, conveyance, lease, concession, covenant, grant, record,...