Rougeau v. State

• Decision Date: 23 September 1987
• Docket Number: No. 69233,69233
• Citation: 738 S.W.2d 651
• Parties: Paul ROUGEAU, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 651

738 S.W.2d 651

Paul ROUGEAU, Appellant, v. The STATE of Texas, Appellee.

No. 69233.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 23, 1987.

Rique D. Bobbitt, Bob C. Hunt, William W. Burge, Kristine C. Woldy, Houston, for appellant.

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

Before the court en banc.

OPINION

TEAGUE, Judge.

Paul Rougeau, hereinafter appellant, was convicted of the murder of A.C. Wilkins, while in the course of committing or attempting to commit the offense of aggravated robbery, which caused the offense of murder to become capital murder, see V.T.C.A., Penal Code, § 19.03(a)(2), and, after the jury answered in the affirmative the special issues that the trial judge submitted to it, see Art. 37.071, V.A.C.C.P., the trial judge assessed his punishment at death. ¹ We affirm.

Appellant, through court appointed counsel, presents twenty points of error, see Texas Rules of Appellate Procedure, Rules 210 (b) and 74 (d). None of his points of error challenge the sufficiency of the evidence either as to guilt or punishment. Therefore, only when necessary, we will not elongate this opinion by setting out the facts that pertain either to guilt or punishment.

Appellant's points of error are as follows: (1) "The trial court erred in overruling Appellant's motion for mistrial when witness Robinson referred to the prior trial of this case before the jury"; (2) "The trial court erred in denying Appellant's request that the state be restricted from using data processing equipment to investigate the criminal background of defense witnesses"; (3) "The trial court erred in permitting the prosecutor to identify himself before members of the jury panel as representing the family of the victim"; (4) "The trial court erred in permitting the prosecutor to represent to the members of the jury panel that when the punishment question talks about society, it includes prison society"; (5) "The trial court erred in denying Appellant's challenge for cause to venire [person] Margaret Route, who was later excused by the defense"; (6) "The trial court erred by excusing venireman James Smith on his own motion"; (7) "The trial court erred in permitting the testimony of Officer D.W. Howell over objection by defense counsel"; (8) "The prosecutor committed error by calling Appellant's common law wife to the stand before the jury"; (9) "The trial court erred in admitting the blood sample test results because the witness could not testify from whence they came"; (10) "The trial court erred in permitting witness Freedman to testify that Appellant refused permission to remove the bullet lodged in his body"; (11) "The trial court erred in permitting the prosecutor to state during final argument that Appellant had refused permission to remove the bullet lodged in his body"; (12) "The trial court erred in permitting witness Wesley Warner to testify on punishment because his mere appearance demonstrated that Appellant had been in custody"; (13) "The trial court erred in permitting Wesley Warner to testify because his testimony demonstrated that Appellant had been previously convicted in another trial of this cause"; (14) "The trial court erred in overruling Appellant's pro se motion to dismiss for denial of a speedy trial"; (15) "The trial court erred in denying Appellant's motion for mistrial when the prosecutor argued the defendant's failure to testify on punishment"; (16) "The trial court erred in overruling Appellant's amended motion for new trial based on newly discovered evidence known to the prosecutor at the time of trial and not conveyed to the defense, despite its exculpatory nature"; (17) "The trial court erred in refusing to quash the indictment"; (18) "The trial court erred in overruling Appellant's motion to suppress evidence because the warrant date is one year prior to the date of the offense"; (19) "The trial court erred in denying Appellant's motion to suppress evidence, based on evidentiary hearings at the first and second trials"; and (20) "The trial court erred in permitting Earl Campa to testify regarding the facts of the arrest of Appellant because the warrant was defective".

We will not address appellant's points of error in the above order, but will address them in the chronological trial order when the complaints arose.

Appellant asserts in his seventeenth point of error that "The trial court erred in refusing to quash the indictment." We agree with appellant that the trial judge erred, but because we find that the error did not amount to reversible error we will overrule his contention.

The State elected to prosecute appellant pursuant to "Count Two" of the indictment which alleges in pertinent part that appellant, "heretofore on or about January 6, 1978, did then and there unlawfully while in the course of committing and attempting to commit Aggravated Robbery, intentionally cause the death of A.C. Wilkins, hereafter [sic] called the Complainant, by shooting the Complainant with a gun".

The record reflects that one of the two experienced trial attorneys appointed to represent appellant also represented appellant in appellant's former trial. See footnote 1, ante. We cannot find anywhere in this record where it could be argued that appellant's trial attorneys were either surprised or ambushed during this trial. The record also reflects or indicates that trial counsel had a transcript of the prior trial testimony of the witnesses who had testified at appellant's former trial and again testified at this trial.

Appellant, nevertheless, argues under his point of error that he was not given sufficient notice through the indictment to prepare for trial. The State does not directly respond to appellant's contention.

By the terms of Count 2 of the indictment, see ante, appellant was put on notice that the State intended to prove that while in the course of committing or attempting to commit the offense of aggravated robbery he intentionally caused the death of A.C. Wilkins.

Although the indictment alleges that Wilkins' death occurred while in the course of committing or attempting to commit the offense of aggravated robbery, the indictment does not state that Wilkins was the victim of the alleged aggravated robbery, and, from the evidence presented at the former trial as well as this trial, a person or persons other than Wilkins could have been the victim of the aggravated robbery.

In Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980), and King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), this court held that when criminal conduct constituting an aggravating feature of an offense may be directed at a person other than the murder victim, the specification of that person is a fact to which the accused is entitled should he request it by timely filed written motion to quash. Also see Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983); Pinkerton v. State, 660 S.W.2d 58 (Tex.Cr.App.1983); Silguero v. State, 608 S.W.2d 619 (Tex.Cr.App.1980); and Evans v. State, 601 S.W.2d 943 (Tex.Cr.App.1980). In this instance, the intended victim of the aggravated robbery could have been someone other than Wilkins. Thus, under the above decisions of this Court, the trial judge clearly erred in overruling appellant's motion to quash and such would have formerly constituted reversible error. See, for example, King v. State, supra.

However, in Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986), also see Opdahl v. State, 705 S.W.2d 697 (Tex.Cr.App.1986), a majority of this Court formulated a new test regarding whether an improper denial of a motion to quash an indictment for lack of notice constitutes reversible error, and held that if it is found that the trial judge erred in overruling a defendant's motion to quash, "the next step is to decide whether, in the context of the case, this had an impact on the defendant's ability to prepare a defense, and, finally, how great an impact." (903).

Given the fact that it is not claimed by appellant that what was presented at the second trial differed substantially from what was presented at the first trial, we cannot conclude that the omission of the name of the victim of the aggravated robbery had any substantial impact on appellant's ability to prepare his defense in this cause.

Appellant's seventeenth point of error is overruled.

Appellant asserts in his third point of error that "The trial court erred in permitting the prosecutor to identify himself before members of the jury panel as representing the family of the victim." We agree with appellant but for reasons we will give cannot conclude that the error was so egregious that it denied appellant a fair trial.

Members of the jury panel were informed by the prosecutors that they would be representing the State of Texas "and the family of A.C. Wilkins in the prosecution --"; that "the law doesn't put the burden on the family to hire an individual attorney, the burden falls on the District Attorney's Office." (Our emphasis.)

In its reply brief, the State appears to argue that appellant failed to perfect the claimed error. We disagree. The record clearly reflects that appellant's trial attorney timely and properly objected many times to the statements and each time the trial judge overruled the objection. Counsel then concluded that to further object would have been a fruitless endeavor, which the record makes clear it would have. The State's claim that the error was not perfected is overruled. To require a defense attorney to repeatedly object, after the record makes clear that the trial judge's ruling is, so to speak, written in stone, would place an unwarranted burden on his shoulders. We decline to place such a burden on defense counsel. The State also claims that "The trial court properly overruled the appellant's objection, since it is common knowledge that the District Attorney's Office represents the State of Texas and...