Quinones v. State, 62117

Decision Date09 January 1980
Docket NumberNo. 62117,62117
Citation592 S.W.2d 933
PartiesJohn Henry QUINONES, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

Appellant raises various grounds of error stemming from the use of a tape recording of a conversation between appellant and an accomplice. Appellant also claims that the indictment is duplicitous, that the court erred in refusing to order discovery or independent examination of a pistol, that the charge to the jury on guilt failed to define the offense, that evidence of an extraneous offense was improperly admitted in the punishment phase, and that the charge to the jury on punishment was insufficient.

The evidence, which is sufficient to support the conviction, will be summarized so the matters discussed may be more clearly understood. On the afternoon of June 15, 1978, appellant and Robert Leal visited Simonia Sendejo at her home. Both Leal and Sendejo noticed that appellant was carrying a pistol. Appellant left the Sendejo house but soon returned in a neighborhood ice cream truck. The truck, which the appellant had hijacked, was being driven by Mohammed Ali Vahdat.

Appellant waved Leal and Sendejo over to the truck and told them to get in. Appellant forced Vahdat to begin driving to a Houston-area drive-in theater. During the drive, appellant pocketed the money in the truck, took Vahdat's money, watch and wallet, appropriated a tape player, and struck Vahdat with a gun. Appellant then told Leal to drive and forced Vahdat to the back of the truck. Appellant struck Vahdat repeatedly during the remainder of the trip to the theater.

At the theater, appellant told everyone that because he was on parole and did not want to return to jail he would have to kill Vahdat. Sendejo fled. Leal also abandoned the truck and saw it leave the theater. About thirty minutes later the appellant returned in the truck and informed Leal that he had sexually assaulted Vahdat. Other witnesses overheard Vahdat moaning and pleading for his life.

Appellant ignored attempts by the theater staff to dissuade him from killing Vahdat. Accompanied by Gilbert Mendez and Richard Wayne Collins, who both followed him in another vehicle, appellant drove the ice cream truck away from the theater. Late that evening the abandoned ice cream truck was found by police. The next day, the body of Mohammed Ali Vahdat was discovered in a wooded area outside the Houston city limits. The cause of death was a gunshot wound to the head. No weapon or bullets were found at the scene. Expert testimony indicated that the fatal bullet could have ranged from .25 to .38 in caliber.

News of the death appeared in the newspapers. After reading the news an acquaintance of appellant, Christina Rosas, asked appellant about it. She testified that appellant admitted the killing, laughed about it and stated: "You're going to see me on Channel 11 and Channel 13. John Henry Quinones."

On June 17, Richard Wayne Collins was apprehended on unrelated charges at a Houston motel. Collins gave the police a 7.65 mm. automatic pistol which he said did not belong to him. Other testimony identified this pistol as the one being carried by appellant on June 15, although the witness, Robert Leal, described the pistol as being a .32 caliber automatic pistol. During questioning, Collins began giving information about the Vahdat murder. On June 22, Collins agreed to wear a tape recorder in an effort to secure a taped conversation between Collins and appellant about the crime. After receiving the tape of this conversation, the police arrested appellant for capital murder.

Appellant was indicted on July 12. On July 20, the trial court held a hearing on appellant's pretrial motions. Paragraph (b) of appellant's motion for pretrial discovery asked for discovery of "all recorded statements allegedly made by the Defendant, if any continuing . . . ." At the hearing the court, in reviewing the motion, engaged in the following colloquy:

"THE COURT Paragraph b.): All recorded statements allegedly made by the Defendant.

"Are you speaking about mechanically recorded statements?

"MR. COLLINS (one of the defense attorneys): Yes, your Honor.

"THE COURT: Observations, Mr. Bodiford?

"MR. BODIFORD (an Assistant District Attorney): There are none.

"THE COURT: That would not be discoverable, if I understand the provisions of Article 39.14. I do not believe a mechanically recorded statement is discoverable under Article 39.14.

"You say you have none anyway. How do you want me to state that; denied?

"MR. BODIFORD: The State asks it be denied."

The discovery request was denied. Although appellant himself was aware of the existence of the tape from the time of his arrest, his attorneys first learned of the tape from Collins' attorney on September 13.

On September 18, the first day of trial, appellant attempted to move for production of the tape recording. The trial judge refused to hear the motion since he held that it was untimely filed. On September 25 the State introduced testimony about how the tape recording was obtained and made. The next day, appellant filed a motion for continuance, requesting additional time to examine the tape, and a motion for court appointment of an independent expert to examine the tape. Both of these motions were denied.

Portions of the tape were played before the jury during the guilt phase of the trial and the entire tape was played during the punishment phase. The tape contained a fifteen second tapeover which, according to the State's witnesses, was caused by an officer accidentally pressing the "record" button on the machine. The recorded conversation, in pertinent part and including the tapeover, was as follows:

"QUINONES: Went, mmm boy, I tell you I gonna call that chick out that day.

____________

BREAK IN TAPE, TAPEOVER IN NARCOTICS DIV., LT. THOMAS' OFFICE

"SCHULTEA (a police officer): Four, testing, one go to ID man, and they act like you committed a crime pick up right there.

"COLLINS: Let's go ahead and listen to it, he's just fixing to get to the part where

"NIXON (a police officer): Where we want to hear.

"SCHULTEA: Quit foolin with it

END TAPEOVER, 15 SECOND DURATION

____________

"COLLINS: Hey man, the cops, cops got that gun.

"QUINONES: I know that.

"COLLINS: They got it, I don't think they know where it come from though.

"QUINONES: Well hey, they reported it hot, the ones, the people who had it.

"COLLINS: They did . . . Where'd you get that motherfucker, Mexico or somethin?

"QUINONES: From here, that's what we used to, uh, hold-up the 13G's.

"COLLINS: What, the THC?

"QUINONES: There ain't no heat in that man, there ain't no heat in that man.

"COLLINS: What, like if if if the heat comes down, man, like, what a about bond man?

"QUINONES: Don't worry about no heat man, don't even worry about it no more. Just as long, Johnny Morales, I don't know if they told you about it, (indecipherable word) him in the night, man, they investigated it, but let me tell you, ain't nobody seen me, ain't nobody seen you, in that car, man, ain't anybody even knows you fuckin had nothing to do with it. Only person knows man, me you see the only ones who saw the actual murder man, just me, you and Gilbert. Gilbert ain't even been the drive-in no more. He's staying clear, man.

"COLLINS: Dig it.

"QUINONES: I ain't

"COLLINS: He move, he moved didn't he?

"QUINONES: Yeah, I think so. I ain't been stealing nothing. I did a little stealing here and there, just some bullshit shit, you know what I mean, but, uh, I'll tell you about some shit, if you want to, man, you can go with us, man, but it will come out of my cut, or you can loan me your car in the mornin, man. We steal in the mornin, man, early . . . pick up my cousin, man, you know which one I'm talking about, man, that big one, with all them tattoos? Me and him goin to do, not no robbery, no going to be no heat on this car, man, all we just need is something to load up some shit on, like hot items.

"COLLINS: Yeah, well . . .

"QUINONES: All we going to do is steal some shingles.

"COLLINS: What's you do with that tape deck, man, think I might get that mother fucker man, and fucking put it in my ride, man.

"QUINONES: Can you hook it up right fast, man?

"COLLINS: That scared I don't you know that, when when you shot that dude, I don't believe I could have done that, man.

"QUINONES: Huh?

"COLLINS: I got a weak stomach.

"QUINONES: Well, shit man

"COLLINS: I was too happy to at the time man, I mean I was high, man . . .

"QUINONES: Not did it because I was high, man, but I thought about it hard, man, I didn't want to kill that dude, man, I didn't want to kill him, you know what I mean? (Quinones yawning while talking, unintelligible words.)

"COLLINS: I read about this shit in the newspaper man.

"QUINONES: Yeah, they told me they got the clippings out. I'm going to read it whenever they find it, they put it up somewhere. Anyway, uh, did you, uh, I don't know, man, it's just it's just a matter between you going to the pen, man, for robbery, man, or you taking a chance of murdering him, man, and get busted.

"COLLINS: I tell you man, I'm going to quit, you know, like coming around for a while.

"QUINONES: All right, that's cool, brother, but like I said, the only reason I asked you down, cause I need a little money see all we're going to do, like I said, is go and see what we can do, me and him, cause he knows the places, and he needs some help. I make maybe fifty, a hundred dollars, two hundred, within a day, man, cause we go early, and...

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    ...extraneous offenses are admissible at the penalty stage of a capital murder trial absent a showing of unfair surprise. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980), cert. den. 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121; Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980); Rumbaugh v......
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