Strickland v. State
| Decision Date | 30 January 1990 |
| Docket Number | No. 6-89-006-CR,6-89-006-CR |
| Citation | 784 S.W.2d 549 |
| Parties | Charles Murry STRICKLAND, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Gregory Neeley, Akin, Steele & Bush, Longview, for appellant.
Charles C. Bailey, Dist. Atty., Mt. Pleasant, for appellee.
Charles Murry Strickland appeals his conviction of delivery of marihuana of less than five pounds but more than four ounces. We reversed Strickland's original conviction in Strickland v. State, 747 S.W.2d 59 (Tex.App.-Texarkana 1988, no pet.), because he received ineffective assistance of counsel. The case was remanded to the trial court for a new trial. On remand, the jury found Strickland guilty and assessed his punishment at twenty years' confinement in the Texas Department of Corrections, plus a $10,000 fine.
Strickland contends that the trial court erred by allowing the State to introduce evidence of extraneous offenses, by failing to include a limiting instruction in the court's charge concerning the extraneous offense, by denying him the opportunity to conduct an evidentiary hearing on his motion to suppress, by admitting the testimony of Claude Latta as to the results of chemical analysis performed on the marihuana in violation of Tex.R.Crim.Evid. 803(6), and by refusing to grant his motion for mistrial on the grounds that the sheriff of Camp County was acting as bailiff in his trial while also being a witness.
During the trial, the jury heard evidence about the delivery for which Strickland was on trial. In addition, evidence of marihuana found both inside and outside of Strickland's residence and booby traps found outside his residence was presented to the jury over objection.
Appellant contends that the trial court committed reversible error by allowing the State to introduce evidence of extraneous offenses and in failing to give a limiting instruction concerning the extraneous offenses in the jury charge. The State maintains that the complained of evidence was not evidence of extraneous offenses but rather was evidence so interconnected with the commission of the offense as to be part of the res gestae of the offense and was therefore admissible to show the context in which the offense occurred.
An accused is entitled to be tried on an accusation made in the indictment and not for a collateral crime or for being a criminal generally. Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972). However, extraneous offenses are admissible to show intent or knowledge, state of mind, motive, system, scheme or plan. Mallicote v. State, 548 S.W.2d 42 (Tex.Crim.App.1977). The test for determining the admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory nature. Evidence of other crimes committed by the accused may be admitted where such evidence is shown to be both material and relevant to a contested issue in the case. Albrecht, 486 S.W.2d at 100.
Evidence of extraneous offenses is admissible pursuant to the res gestae theory under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. Albrecht, 486 S.W.2d at 100.
The evidence at trial showed that Strickland negotiated a sale of marihuana over the telephone with an undercover narcotics officer, Lane Adkin. Agent Adkin then travelled to Strickland's residence along with a surveillance team. Upon entering the residence at Strickland's invitation, Adkin noticed a large green plastic trash bag in front of the kitchen, which Strickland weighed on his scales. The scales indicated that the sack weighed less than five pounds, and Strickland made some comment about it being a little bit light. Strickland then went outside the residence to a Dodge vehicle parked in front of the residence where he retrieved additional marihuana to place in the plastic trash bag. Strickland then delivered the bag of marihuana to Adkin and received $3,500 in return. Strickland was arrested, and the premises were searched pursuant to a search warrant.
The evidence further shows that the marihuana seized in the residence and on the property was in plain view of Adkin. In searching the property, additional marihuana was discovered as well as several booby trap devices in the form of rat traps, modified to detonate a .12 gauge shotgun shell.
Where an offense is one continuous transaction, or another offense is part of the case on trial or blended or closely interwoven, proof of all such facts is proper. Archer v. State, 607 S.W.2d 539 (Tex.Crim.App. [Panel Op.] 1980); Welch v. State, 543 S.W.2d 378 (Tex.Crim.App.1976). The evidence was admissible to show the context in which the criminal act occurred.
Strickland also contends that the trial court committed reversible error by failing to include a limiting instruction concerning extraneous offenses in the court's charge. It is not necessary to give a limiting instruction on an extraneous offense which constitutes res gestae of the offense for which an accused is on trial. Archer, 607 S.W.2d 539. Evidence admitted on the theory that it is part of the context of the charged offense does not require a limiting instruction. Hoffert v. State, 623 S.W.2d 141 (Tex.Crim.App. [Panel Op.] 1981). Therefore, the trial court did not err in charging the jury without a limiting instruction as to the extraneous offense.
Strickland contends that the trial court committed reversible error when it denied Strickland the opportunity to conduct an evidentiary hearing on its motion to suppress. Prior to Strickland's first trial in 1986, the trial court held an evidentiary hearing on Strickland's motion to suppress evidence. The motion sought to suppress evidence seized pursuant to the execution of a search warrant following Strickland's arrest. Strickland's motion was denied, and he was subsequently tried and convicted for the offense of delivery of marihuana.
On remand, another motion to suppress was filed by Strickland's new attorney, and one was filed by Strickland acting on his own behalf. Strickland contends that the court abused its discretion under Article 28.01 of the Texas Code of Criminal Procedure by refusing to allow Strickland to conduct an evidentiary hearing on the motion to suppress either at pretrial or during trial on the merits. Strickland contends that by doing this, the trial court violated Article 28.01 and harmed Strickland by denying him effective assistance of counsel in violation of the United States and Texas Constitutions. The court refused to conduct a hearing on Strickland's motion and instead made a ruling on the motion to suppress after reviewing the motion, the search warrant, the evidence presented at the hearing on the first motion to suppress held before Strickland's first trial, and matters presented by counsel for both sides. The trial court then denied Strickland's motion to suppress without holding an evidentiary hearing.
The first conviction was reversed, and the case was remanded for a new trial on the basis of ineffective assistance of counsel. Strickland's complaint on appeal dealt with allegations concerning the representation of Gerald Weatherly. This Court reversed the case stating that, "Weatherly's representation of Strickland falls below any objective standard of reasonableness...." However, it was David Griffith, not Weatherly, who represented Strickland at the time of the pretrial hearing on the motion to suppress. Strickland made no complaints about the representation by Griffith, and this Court made no findings concerning Griffith's representation. The record shows that Griffith ably represented Strickland at that hearing and that there was a thorough hearing on the motion to suppress, which covers more than one hundred pages in the record.
The first question that we address is whether the trial court was obligated to again hold hearings on pretrial matters which were not alleged to have been tainted by ineffective assistance of counsel and which were not addressed as a basis for reversal by this Court. Strickland is not entitled to two hearings on the motion to suppress, and the trial court was not required to again conduct a hearing on this matter even though another motion was filed.
We should point out that a different trial judge conducted the second trial, so he was not the judge who had conducted the hearing on the motion to suppress. However, it is not improper for different judges to sit at different hearings in a case, and this holds true, absent an abuse of discretion, even if an objection is made. Woods v. State, 569 S.W.2d 901 (Tex.Crim.App.1978).
The additional matter that should also be addressed is the fact that after the first trial and the remand by this Court, Strickland filed a motion asking the trial judge to recuse himself. The trial judge denied the basis alleged for his recusal, but voluntarily recused himself and had a visiting judge assigned to try the case. The grounds were the trial judge's appointment of an attorney who was found to be ineffective counsel and a pending civil suit brought by Strickland against the trial judge, alleging $500,000 in damages for bias and prejudice against the defendant. These allegations are based upon matters occurring after the pretrial hearing and therefore could not be considered to have tainted the initial pretrial hearing. Thus, we find no error in the trial judge's refusal to hold a hearing on the additional motions to suppress, which were based upon the same illegal search and seizure grounds as the original motion.
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