Rodriguez v. State

• Decision Date: 05 March 1980
• Docket Number: No. 62274,62274
• Citation: 597 S.W.2d 917
• Parties: Magdaleno V. RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 917

597 S.W.2d 917

Magdaleno V. RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 62274.

Court of Criminal Appeals of Texas, En Banc.

March 5, 1980.

Rehearing Denied April 16, 1980.

Thomas Rocha, Jr., San Antonio, for appellant.

Bill M. White, Dist. Atty., Charles T. Conaway, Teofilo Chapa and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder. After the jury returned affirmative answers to the issues submitted under Art. 37.071, V.A.C.C.P., at the punishment stage, punishment was fixed at death.

In his first ground of error appellant attacks the grand jury selection method used to select the grand jury that returned his indictment.

In his argument under this ground of error appellant recognizes that the preliminary issue he must confront is the requirement of Muniz v. State, Tex.Cr.App., 573 S.W.2d 792, that challenges to the composition of the grand jury must be raised at the earliest opportunity. Referring to Art. 19.27, V.A.C.C.P., the Court in Muniz wrote:

"This statute has been interpreted to mean that the array must be challenged at the first opportunity, Valadez v. State, Tex.Cr.App., 408 S.W.2d 109, which ordinarily means when the grand jury is impaneled. Challenge at this early date is sometimes impossible as when the offense occurs after the grand jury is impaneled. When challenge on impanelment is not possible, the array can be attacked in a motion to quash the indictment before trial commences. Ex parte Covin, 161 Tex.Cr.R. 320, 277 S.W.2d 109. If the defendant has an opportunity to challenge the array when it is impaneled and does not do so, he may not challenge it at a later date. Armentrout v. State, 138 Tex.Cr.R. 238, 135 S.W.2d 479."

In an effort to distinguish Muniz, appellant argues that he was not indicted by the first grand jury impaneled after he was arrested and charged in this case, and that had he challenged that first grand jury "he would have been told that he was premature and thus he would have been required to prognosticate that the July 1977 grand jury would have been the one indicting him and thus the one to be challenged." The purpose of a challenge to a grand jury is not dependent upon knowing that the particular grand jury will consider the case of the challenging accused; the purpose is to prevent the challenged grand jury from considering his case. If no timely challenge is raised to the composition of the grand jury, it is presumed the accused had no ground for objection, and he is barred from raising a challenge at some later time that he should and could have raised in a timely fashion.

In the table of events in appellant's brief he concedes that he had been arrested and charged in this offense, and was represented by counsel, long before the grand jury that indicted him was impaneled. We find, as we did in Muniz, that appellant's failure to challenge the grand jury by a timely motion waived his right to make such a challenge. The ground of error is overruled.

In his second ground of error appellant asserts he is entitled to a new trial because the State violated an order on his motion for discovery by failure to disclose police offense reports of prior convictions. We initially note that his brief does not direct us to where the order on his motion may be found in the record, and our own examination of the instruments filed in the case and of the docket sheet does not disclose the existence of such an order.

During the course of a lengthy discussion of the offense reports, however, it appears that his motion for discovery of his police records had been granted prior to trial. Assuming the motion was granted, we point out that it has frequently been held that police reports are within the express exception from pre-trial discovery under Art. 39.14, V.A.C.C.P. Brem v. State, 571 S.W.2d 314; Holloway v. State, Tex.Cr.App., 525 S.W.2d 165; Sheldon v. State, Tex.Cr.App., 510 S.W.2d 936; McCloud v. State, Tex.Cr.App., 494 S.W.2d 888; Powers v. State, Tex.Cr.App., 492 S.W.2d 274; Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233; Hart v. State, Tex.Cr.App., 447 S.W.2d 944. Since the appellant was not entitled to pre-trial discovery of the police reports, no error is shown.

To the extent that appellant argues the State improperly suppressed the report in violation of his constitutional rights, we point out, as was stated in Young v. State, Tex.Cr.App., 552 S.W.2d 441, relying on Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), that one essential component in consideration of a claim of prosecutorial suppression of evidence is that "the evidence's favorable character for the defense must be shown." Appellant makes no assertion that the undisclosed offense reports are of a favorable character for the defense.

The dissent takes the position that Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), was violated in this case. The situation here is not all like that in Gardner. The holding in that case was:

"We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." (Emphasis added.)

In Gardner, the defendant and his attorney were never informed of part of the information upon which the decision to impose the death penalty was based. Even after the trial was over and after the punishment was assessed, that information was not disclosed. The dissent's reliance on Gardner is misplaced. The testimony about which appellant complains was presented in open court and in his presence.

Finally, when, after lengthy discussion and argument between the attorneys over the use of the offense reports, objection was first raised on the basis of violation of the discovery order, appellant moved for a mistrial, but did not request a postponement or continuance under Art. 29.13, V.A.C.C.P., on the basis of surprise. This default alone would waive any error urged on the basis of surprise. See, Hays v. State, 117 Tex.Cr.R. 205, 36 S.W.2d 1029, 1031.

The second ground of error is overruled.

In his next three grounds of error appellant complains of the use made by the State of the three offense reports referred to in the previous grounds of error.

During the punishment phase of the trial the State called Dr. Grigson, who testified that appellant was a severe sociopath who would commit criminal acts of violence in the future. On extensive cross-examination appellant's counsel asked about the basis for that conclusion, and inquired at length into what acts of violence in appellant's past had been relied on by the doctor in making his determination. ¹ It was then on redirect examination that the complained of offense reports were used to inquire further into the basis for the doctor's opinion. We hold the cross-examination by appellant on this subject opened the door under Art. 38.24, V.A.C.C.P., for the State to inquire further into the same subject.

Even though the dissent on its own initiative argues unreliability, appellant has made no attempt to show, by motion for new trial or otherwise, that the information received by the jury was in fact unreliable. Instead, the entire thrust of appellant's tactic in opening up this subject was to challenge the reliability of Dr. Grigson's conclusions through examination of what information he used to reach those conclusions. See footnote 1, above. It should reasonably have been expected that such a tactic could have opened a Pandora's box. These grounds of error are overruled.

Next appellant challenges the constitutionality of the Texas death penalty scheme. Such attacks have been repeatedly rejected by this Court. Jurek v. State, Tex.Cr.App., 522 S.W.2d 934, affirmed 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Smith v. State, Tex.Cr.App., 540 S.W.2d 693; White v. State, 543 S.W.2d 104, 105; Granviel v. State, Tex.Cr.App., 552 S.W.2d 107; Freeman v. State, Tex.Cr.App., 556 S.W.2d 287; Hughes v. State, Tex.Cr.App., 562 S.W.2d 857. The ground of error is overruled.

Appellant also raises challenges to admission of the testimony of Dr. Grigson, on the theory that the psychiatric interview violated his privilege against self-incrimination. The brief, however, does not cite any trial objection, and our examination likewise reveals none. Nothing is presented for review. Muniz v. State, Tex.Cr.App., 573 S.W.2d 792.

Finally, it is argued that the trial court erroneously denied appellant's motion that prospective jurors be examined under the Witherspoon ² criteria instead of under V.T.C.A., Penal Code Sec. 12.31(b). There is no contention, however, that examination of any prospective juror was restricted in this regard, nor that any prospective juror was dismissed in violation of the mandate of Witherspoon. The ground of error is overruled.

The judgment is affirmed.

PHILLIPS, Judge, dissenting.

In allowing this death sentence to stand, the majority sanctions a travesty of justice. To justify this erroneous result, the majority employs reasoning that cannot withstand legal analysis.

Appellant's death sentence was based at least in part on completely unreliable evidence. At the punishment phase of his trial, the State's psychiatrist testified that appellant committed three extraneous offenses, all involving acts of force and violence. This testimony was hearsay upon hearsay, and its admission violated the United States Constitution in three separate ways. See the discussion infra.

The majority summarily overrules appellant's grounds of error concerning this testimony. Its sole justification is that defense counsel "opened the door" under Article 38.24, V.A.C.C.P. In invoking Article 38.24, the majority fails to consider the underlying rationale of this statute. In addition, the majority disregards the relationship between a...