Roney v. State

• Decision Date: 05 May 1982
• Docket Number: No. 68873,68873
• Citation: 632 S.W.2d 598
• Parties: James Lawrence RONEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 598

632 S.W.2d 598

James Lawrence RONEY, Appellant, v. The STATE of Texas, Appellee.

No. 68873.

Court of Criminal Appeals of Texas, En Banc.

May 5, 1982.

Rehearing Denied June 2, 1982.

Donald W. Rogers, Jr., Houston (court appointed on appeal), for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and Ned Morris, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder in the course of robbery. V.T.C.A., Penal Code Sec. 19.03(a)(2). The jury having returned affirmative answers to the issues submitted at the punishment stage under Art. 37.071(b), V.A.C.C.P., punishment is death.

In his first ground of error appellant contends it was error to allow a police witness to bolster the identification testimony of Man Thi Tran, the surviving robbery victim present at the murder. He relies on Lyons v. State, 388 S.W.2d 950. The State argues the bolstering testimony was admissible because appellant attempted to impeach the identification by Man. In Smith v. State, 520 S.W.2d 383, the Court applied the rule relied on by the State:

"In the instant case, after Rouchell had identified appellant at trial, appellant's lengthy cross-examination elicited testimony from Rouchell that he had never seen appellant before the day of the shooting, that he did not know what appellant was wearing on the day in question, that he remembered the man who shot him was 'five foot seven or eleven,' and that he did not know whether the man who shot him had a 'mustache or a goatee or any kind of facial hair on the 25th of November' or whether he was well shaven. In light of appellant having 'impeached or attempted to impeach' Rouchell regarding his identification of appellant, we find no error in the court admitting the testimony of officers Huffman and Crowder that Rouchell identified appellant at the scene of the wreck...."

The rule is:

"Where the defendant impeaches or attempts to impeach the testimony of the identifying witness, the testimony of a third party as to the witness' extrajudicial identification is admissible. Turner v. State, 486 S.W.2d 797; Frison v. State, 473 S.W.2d 479; Beasley v. State, 428 S.W.2d 317." Franklin v. State, 606 S.W.2d 818, 824 (reversed on other grounds on rehearing).

The record in this case shows the following attempt to impeach Man on cross-examination, which is similar in several respects to the cross-examination summarized in Smith v. State, supra:

"Q. Now, I want you to describe for me the man with the gun, as you describe the man to the police. Was he tall or short?

"A. Shorter than her.

"Q. Shorter than you. Did you tell the police he was less than five feet tall?

"A. She-she said that she couldn't tell exactly, you know, how many feet, but she know that he shorter than her.

"Q. Was his skin light or dark?

"A. Light.

"Q. What color was his hair?

"A. White/yellow.

"Q. Did you tell the police he had short brown hair?

"A. No, ma'am.

"Q. Is this your signature?

"A. Yes, ma'am.

"Q. Is this the statement you gave to the police?

"A. Yes, ma'am.

"Q. Do you remember what the man with the gun was wearing?

THE INTERPRETER: The gun?

"A. (T through the Interpreter) She can't remember what he wear but she knew that he wore a coat outside.

"Q. (By Mrs. Garcia) Did you tell the police he was wearing a vest?

"A. (T through the Interpreter) The style, you know, like a vest, but not a vest; a coat.

"Q. Was it a coat or was it a vest?

"MR. MORRIS: Your Honor, we would object to repetition and arguing with the witness.

"THE COURT: Sustained.

"Q. (By Mrs. Garcia) What kind of pants was he wearing?

"A. (T through the Interpreter) She-she can't remember that.

"Q. Did he have a scar on his face?

"A. No, ma'am. She think that he has no scar on the face.

"Q. Was his hair short or was his hair bushy?

"A. His hair-his hair is short, just like her. And she said just like her like this (interpreter indicating), and shine; hold his head.

(Witness indicates.)

"THE INTERPRETER: You know, I don't know what she meant.

"Q. (By Mrs. Garcia) Did you mean the hair is close to his head?

"THE INTERPRETER: Yes.

"Q. (By Mrs. Garcia) Or do you say his hair was as long as yours?

"A. (T through the Interpreter) She said just about her hair and so-not fluffy. Not fluffy.

"Q. Did his hair cover his ears?

"A. No, ma'am.

"Q. Did you see his pants?

"A. No, ma'am.

"Q. Did the counter hide his pants?

"A. She maybe equal with his pants, but she didn't pay attention to his pants."

We hold the record shows an attempt to impeach Man's identification that was of a sufficient degree to authorize admission of the bolstering testimony. The first ground of error is overruled.

In his next ground of error appellant asserts it was error to deny court-appointed counsel ten days to prepare for trial as required by Art. 26.04, V.A.C.C.P. The record reflects that appellant was represented by three attorneys, two of whom were appointed long in excess of the ten day statutory period for trial preparation. Appointment of an additional attorney within less than ten days of trial did not violate Art. 26.04, supra. Henry v. State, 433 S.W.2d 430, 432-433. The ground of error is without merit.

In his fifth ground of error appellant challenges the sufficiency of the evidence to support the jury's affirmative answer to the second punishment issue. Art. 37.071(b)(2), V.A.C.C.P. He contends the evidence is insufficient to prove beyond a reasonable doubt that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

In his argument appellant points to the absence of evidence of a prior criminal record and the failure of the State to present psychiatric evidence and character evidence. He also asserts there was an absence of physical violence in the one extraneous offense shown by the State (an aggravated robbery committed only minutes before the murder). In addition, appellant relies on evidence he presented at the punishment stage of the trial that he was seventeen years old, had an eighth grade education, had no prior arrests, and voluntarily surrendered himself to police.

The State, in reply, relies on three factors as supportive of the jury's affirmative finding on the future dangerousness issue: the gravity of the offense, appellant's attitude, and the extraneous offense.

Evidence presented at the guilt stage of the trial may be considered by the jury when determining the second punishment issue, and the circumstances of the offense, if severe enough, may alone be sufficient to support an affirmative answer by the jury on that issue. Muniz v. State, 573 S.W.2d 792; Brooks v. State, 599 S.W.2d 312. Prior criminal conduct, a criminal record, the age of the defendant, and psychiatric evidence are among the various other matters relevant in deciding the second punishment issue. See Earvin v. State, 582 S.W.2d 794; Brooks v. State, 599 S.W.2d 312; Barefoot v. State, 596 S.W.2d 875.

We first summarize the evidence of the offense. On October 22, 1979, Nguyen Viet Hoang and Man Thi Tran ¹ were working at a U-totem store in Houston when Trevor Haughton entered. Haughton (who testified as an accomplice witness) was in the store for about three minutes and then was gone for about five minutes before returning with appellant and Jesse Andrews. ² Haughton entered first, followed by Andrews, both of whom were unarmed, and then appellant, who was armed with a sawed-off shotgun. Man was behind the counter and Hoang either was in the restroom or just coming out of the restroom. Appellant first pointed the shotgun at Man, and then, as Hoang was moved into the area behind the counter, the gun was pointed at him. The two victims were searched for money, but apparently had none. Money was taken from the cash register, then Hoang was ordered to open the safe but was unable to do so. He appeared to be shocked and scared. Haughton went out of the store to check for cars, and then ran to the car that the three robbers had come in because he was scared. Andrews also ran to the car and both were already in the car when the shotgun blast was heard. Appellant then ran to the car and they drove from the scene. According to Man, the only eyewitness to the shooting to testify, Hoang had his hands raised when he was shot. The doctor who performed the autopsy testified the gun was about three feet from the victim when fired.

Several witnesses testified to statements made by the appellant shortly after the offense. After fleeing the scene the trio drove to a friend's house, where they spent that night and the next day. During the time they were there several witnesses heard appellant make statements about the murder. One who heard him the night of the offense testified appellant said:

"A. 'I had to kill the m f before I let him kill me.'

"Q. Did he say anything else?

"A. He just going on, talking to hisself about something; I don't know."

Another witness testified that on the afternoon of the next day appellant suggested everyone watch the television news, and when the robbery story came on he laughed. Appellant also showed this witness a newspaper story on the robbery and said, "I had to kill that son of a gun, 'cause he was going to kill me," and that he would not get caught because "it was two blacks and one white" while the news reported it was "two whites and one black."

A third witness who could not give a specific date testified that in late October appellant told her that he "had to kill a Vietnamese" and "That the Vietnamese came at him with the broom-with a gun and that he had to kill him." This witness also testified that appellant told her, "that if some police came to Regina's (the friend's) house, they better have their insurance policy paid up or he would kill them with the same gun that he killed...