S.D.G. v. State

• Citation: 936 S.W.2d 371
• Decision Date: 07 November 1996
• Docket Number: No. 14-94-01179-CV,14-94-01179-CV
• Parties: S.D.G. v. The STATE of Texas. (14th Dist.)
• Court: Court of Appeals of Texas

Page 371

936 S.W.2d 371

S.D.G. v. The STATE of Texas.

No. 14-94-01179-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 7, 1996.

Rehearing Overruled Jan. 9, 1997.

Marc D. Isenberg, Houston, for appellant.

Rikke Burke Graber, Houston, for appellees.

Before YATES, EDELMAN and O'NEILL, JJ.

OPINION

O'NEILL, Justice.

In this juvenile case, S.D.G., ¹ a minor, appeals a finding that he engaged in delinquent conduct on the grounds that the trial court (1) allowed the testimony of fact and expert witnesses who were not identified in interrogatory answers, (2) unreasonably limited the time in which to conduct voir dire and (3) admitted evidence without a proper predicate. We affirm.

Background

On May 4, 1994, appellant and several of his friends ² skipped school and spent the day with a man known only as "L.L." Appellant and the other boys each had guns and were playing with them when one of the guns discharged. L.L. became angry and told the boys to leave. The complainant, a man the boys had never met who was at L.L's house, agreed to drive the boys home. He drove the boys across town in his burgundy Buick Riviera. When they stopped at a convenience store for gas, appellant and two of the boys began to talk about robbing someone. When they got back in the car the complainant drove them to D.S.'s house, but C.C. told him to keep driving. The complainant drove them to the Almeda Place subdivision, where the boys stepped out of the car. C.C. told the complainant to get out of the car and pointed a .41 caliber pistol at him. Z.Q., appellant's co-respondent at trial, was holding a .22 caliber pistol, and appellant and S.M. were each armed with shotguns. Even though the complainant begged the boys not to kill him, C.C. fired a shot that knocked him to the ground. The complainant was still on the ground when appellant shot him. C.C. fired one more shot, and the boys drove away in the complainant's car. As the boys drove away, appellant and Z.Q. laughed about the murder. The boys arrived at D.S.'s house and planned to spend the night there. However, during the evening appellant and a few of the boys left.

Around 1:00 a.m. on May 5, one of the boys walked into a convenience store, looked around, and walked out without buying anything. Shortly thereafter, four boys wearing masks came into the store. One of the boys held a gun to the head of the store clerk and led him to the back office. He ordered the clerk to lie on the floor and threatened to kill him. When the robbers were unable to open the safe, they ordered the clerk to return to the front of the store. When the clerk explained that he did not have a key to the safe, the boys made him open several boxes containing lottery tickets. After taking thirty dollars from the cash register, the boys left.

As the boys were robbing the convenience store, a woman entered the parking lot and noticed a boy pacing outside the store. She also saw a Buick Riviera parked near a dumpster. As she pulled up closer to the front door, she noticed appellant pointing a gun toward the clerk and immediately put her car in reverse. However, before she could exit the parking lot, the boys ran out of the store and rushed toward her. The woman ducked down in her seat just as one of the boys shot out her windshield. Her dashboard and headrest were full of shotgun pellets, and she had pellet wounds on her back and hands.

Around 5:00 a.m. that morning, Sumpter Ferguson decided to take a walk around his neighborhood. At the end of his street, in the Almeda Place subdivision, he discovered the complainant's body. An autopsy revealed that the body had sustained four gunshot wounds. There was an entrance wound to the left side of the head, with a partial exit wound on the right side. A large caliber bullet was recovered from this wound. The complainant also sustained a gunshot wound to the right side of the abdomen, perforating several organs and causing significant bleeding. Experts concluded that both the head wound and the wound to the abdomen were fatal.

Later that same morning, D.S. awoke to find the complainant's Riviera parked in front of his house. His friends were asleep inside the vehicle, and he noticed cigarettes, lottery tickets and candy bars inside the car. After waking his friends, D.S. rode with them to appellant's house. On the way, Z.Q. told D.S. they had robbed a store the night before.

Appellant was charged with delinquent conduct ³ for committing capital murder, aggravated robbery, aggravated assault (two paragraphs), and attempted capital murder. After hearing the evidence, the jury found appellant engaged in delinquent conduct and assessed a sentence of forty years.

Point of Error One

In his first point of error, appellant contends the trial court erred by allowing witnesses to testify who had not been identified in response to appellant's interrogatories.

On July 29, 1994, this case was reset for trial on September 19. On August 4, the State filed its application for subpoenas, which listed the names and addresses of witnesses to whom the State requested trial subpoenas be issued. ⁴ On August 8, 1994, appellant mailed interrogatories to the prosecutor which requested, among other things, the identity of lay and expert witnesses and the expert witnesses' mental impressions. The State did not answer the interrogatories, and appellant filed a pretrial motion to exclude testimony from the State's undisclosed lay and expert witnesses. At the hearing on the motion, which occurred after the jury was seated and sworn, the prosecutor argued that the testimony should not be excluded because she had told appellant "when we did discovery in court" that her file was completely open and that the subpoenas were filed and were part of the court record. The prosecutor further argued:

[W]e talked about the fact of interrogatories. [sic]

Anything he wanted to know I would tell him. So we did not have to go through with interrogatories. Also, today, I told them both [the respondents] verbally the parents of the respondents would be called for identification for date of birth, and [the other respondent's] mother would be called as a witness in the case, as a fact witness, that was the agreement we made.

They had access to everything. In no way has he been harmed. He knows the medical examiner has been called. The address of the medical examiner, the name of the medical examiner, the name of the ballistics guy, everything, he has known.

Although appellant's counsel did not dispute the prosecutor's statements, he denied that there was an agreement relieving the prosecutor from answering the interrogatories. Appellant's counsel also argued that, while he had indeed reviewed the prosecutor's file, it did not include information needed to answer several of the interrogatories. ⁵ The prosecutor reiterated that she had made a deal with appellant that anything he wanted would be furnished to him. However, no written, signed agreement was filed with the court or made in open court and entered of record. See TEX.R. CIV. P. 11.

The trial court asked the prosecutor if she had made the same deal with Mr. Saranello, co-respondent's counsel. The prosecutor stated that Saranello "did not file any discoveries," but he was there when the prosecutor talked about her open-file policy. At the court's request, Saranello confirmed that the prosecutor had told appellant's counsel that she had an open-file policy. Appellant responded that the prosecutor's file contained over 400 names, that he was not sure he was given the entire file each time he asked to review it and, in any event, the prosecutor was bound by Rule 215(5). ⁶ The record indicates that the prosecutor's file was in the courtroom for the trial court to examine. Without making an affirmative finding of good cause, the trial court denied appellant's motion to exclude testimony and allowed the State to present the testimony of all nineteen of its witnesses. Before all but two of these witnesses testified, appellant again objected to the testimony on the basis of Rule 215(5).

Relying upon the civil discovery rules, appellant contends the trial court erred when it failed to apply the automatic sanction provisions of Rule 215(5) and strike the State's witnesses. Appellant claims the trial court failed to make an affirmative finding of good cause for the State's failure to respond, and the record does not otherwise demonstrate that good cause existed.

At the time of trial, Section 51.17 of the Texas Family Code provided that "[e]xcept when in conflict with a provision of [the Juvenile Justice Code ⁷], the Texas Rules of Civil Procedure govern proceedings under this title." ⁸ Before enactment of the Juvenile Justice Code in 1973, the Texas Supreme Court interpreted this provision to mean that juvenile proceedings were governed "as far as practicable" by the rules of civil procedure. In re M. R., 858 S.W.2d 365, 366 (Tex.1993), cert denied, 510 U.S. 1078, 114 S.Ct. 894, 127 L.Ed.2d 87 (1994). However, in enacting the Juvenile Justice Code in 1973, the Legislature replaced the "as far as practicable" qualification with the "except when in conflict" provision. Id. Therefore, unless in conflict with the Juvenile Justice Code, the Rules of Civil Procedure apply. Id; see also Vasquez v. State, 739 S.W.2d 37, 42 (Tex.Crim.App.1987) (holding delinquency proceedings are civil in nature and the Code of Criminal Procedure does not apply unless the Legislature evinces a contrary intent).

Although the State does not contend that the civil discovery rules conflict with the Juvenile Justice Code, we believe that they do. The wide range of discovery afforded under the civil discovery rules allows the parties to conduct a virtual "fishing expedition" that often takes years to complete. For example, in the present case appellant's interrogatories requested, inter alia, "the names, addresses and telephone numbers of any persons having any knowledge...