Smith v. State
| Decision Date | 02 June 1976 |
| Docket Number | No. 51498,51498 |
| Citation | 541 S.W.2d 831 |
| Parties | Charles Wallace SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Arthur Brender, Fort Worth, for appellant.
Tim Curry, Dist. Atty. and Donald S. Gandy, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
BROWN, Commissioner.
This is an appeal from a conviction for the offense of aggravated kidnapping under V.T.C.A. Penal Code, Sec. 20.04. The jury assessed punishment at twenty-five (25) years in the Texas Department of Corrections.
The sufficiency of the evidence is not challenged by the appellant's appointed counsel. Only a brief resume of the facts is, therefore, required.
The record reflects that James E. Berry and L. V. Henderson were abducted at gun-point from a Fort Worth grocery on the morning of September 15, 1974. They were taken by three men, James E. Smith, the brother and co-defendant of the appellant, Dwight Orr, and a third man. Both victims were taken to an apartment in the Riverside Village Apartments complex in Fort Worth. There were numerous visitors to the apartment where the victims were held, and at one point both victims were burned with heated coat hangers by an individual called 'Red.' The appellant armed with a pistol arrived later at the apartment where the victims were being held and told both of the victims that he had drawn battery acid into a syringe. The appellant then told both victims that he was going to inject both of them with the battery acid and that this would result in instant death.
The appellant and three other individuals took Berry to a wooded area in southern Tarrant County. There, the appellant and the others attempted to inject Berry with battery acid unsuccessfully; finally, they drew straws and one of the four shot Berry, resulting in his death. Meanwhile Henderson escaped. Berry's body was found on September 18, 1974 in a wooded area near Mansfield in Tarrant County.
In light of the disposition of this case we need not reach the contentions contained in the appellant's first seven grounds of error.
The appellant in his eighth ground of error contends that the State suppressed the fact that Lonnie Williams, one of the four present when Berry was murdered, had entered into a plea bargain with the District Attorney's office, when Williams denied such an agreement during his testimony for the State.
The appellant argues that during the guilt or innocence stage of the trial Lonnie Williams denied during cross-examination that there had been any agreement between himself or his attorney for a recommendation of a lenient sentence from the District Attorney in return for his testimony in this case.
The record reflects that the appellant filed a Motion for Discovery in which he asked that the State disclose 'any evidence that the State may have in its possession or may know about, which would be favorable or helpful to the defense.'
The record reflects the following during the cross-examination of Lonnie Williams during the guilt or innocence stage of the trial:
'Q And I believe you said that Mr. Joe Johnson here is your attorney, is that correct?
'A Yes, sir.
'Q And you know who this Assistant Criminal District Attorney is sitting here--you have talked to him before, have you not?
'A Yes, sir, on the 20th.
'Q All right, sir. And I believe that in return for your testimony in this case, they made an agreement between you and--your Prosecutor and your attorney, did they not?
'Q Were you told by your lawyer that if you did testify and plead guilty that you would get a certain number of years in the penitentiary?
'A No, sir.
'Q Have you plead guilty?
'A Yes, sir, I pleaded guilty. He told me to plead guilty on the 20th since I was guilty.
'Q Yes, sir.
'A I might as well plead.
'Q I understand that. Did the Judge go ahead and sentence you and tell you how much time you were going to get?
'A No, sir, he told me that he was going to think it over two or three days and he would pass sentence later on me and Fat Albert, both.
'Q And would pass sentence after you testified in the case, is that correct?
'A He didn't say after I testified.
'Q He did not say?
'A He didn't even mention 'testify.' I didn't know that I was suppose to be down there.
'Q Did they tell you you could be sent to the penitentiary for life?
'A Right, sir.
'Q But nobody has promised you anything?
'A No one promised me anything.
'Q Did they offer you anything?
'A Offer me anything?
'Q Yes, sir.
'Q Do you expect to be offered anything?
'A I expect just to go serve my time and get it all over with is all I expect.
'Q Do you expect to get ten years or less?
'Q You understand that you're not going to have a jury?
'A Well, that doesn't make it any different, just still get it over with.
'Q Did they tell you that you were going to have to testify against the other people in the case?
'A Did they tell me that I have to testify?
'Q Did they tell you you were going to be called to testify?
'A Yes, sir, told me that I had to testify and he wanted me to tell the truth.
'Q But they didn't tell you that you were going to get ten years or less?
'A No, sir.
'Q You just are trusting your lawyer?
'A He has been fair with me sofar.
'Q And the State has been fair with you sofar, haven't they?
'A I don't know whatever they give me, I have to take it.'
At the punishment stage of the trial the appellant called Lonnie Williams' attorney, Joe Johnson, Jr., who testified as follows:
'Q State your name, please.
'A Joe Johnson, Jr.
'Q What's your profession, Mr. Johnson?
'A I'm an attorney.
'Q And zeroing on this case, did you represent one of the defendants in this case?
'A Yes, I represented Lonnie Bob Williams.
'Q Has he pleaded guilty in this case?
'A He has.
'Q And was there any agreement between the State of Texas and the defendant as to what punishment he would receive?
'A The State indicated to me that if he plead guilty and testified and testified to the truth that they would probably recommend to the Court a ten year sentence.
'Q And was that recommunicated to you by these prosecutors sitting right over here?
'A Yes, sir.'
(Emphasis Added)
The United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1964) held that the suppression by the prosecution of evidence favorable to the accused after a request violates due process where the evidence is material either to the guilt or punishment irrespective of the good or bad faith of the prosecution.
In Ridyolph v. State, 503 S.W.2d 276 (Tex.Cr.App.1973) this Court reversed a conviction on the failure of the prosecution to disclose a police report indicating a witness who apparently could have given testimony favorable to the accused, holding this violated the prosecutor's constitutional duty to disclose evidence favorable to the accused. The Court relied on Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972) which set out the factors to be considered when the prosecution is alleged to have suppressed evidence. First, there must be suppression by the prosecution after a request by the defense. Second, the evidence's favorable character for the defense must be shown. Third, the evidence must be material to the case.
In Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973) this Court held that the State may not knowingly use false testimony and that the rule does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). As recognized in Napue v. Illinois, supra, the jury's estimate of the truthfulness and reliability of a witness may well be determinative of guilt or innocence.
As stated in 1 C. McCormick & R. Ray, Texas Evidence, Sec. 673 (2d ed. 1956):
Recently in Trippell v. State, 535 S.W.2d 178 (Tex.Cr.App.1976) we held that it was reversible error to deny the accused the right to cross-examine a witness about a prior conviction that could have reflected on his bias, prejudice, and ulterior motive. In Trippell v. State, supra, we cited Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1975) wherein the Supreme Court stated:
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