Waldo v. State

• Decision Date: 28 February 1986
• Docket Number: No. 04-84-00120-CR,04-84-00120-CR
• Citation: 705 S.W.2d 381
• Parties: Wayne Dotson WALDO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 381

705 S.W.2d 381

Wayne Dotson WALDO, Appellant, v. The STATE of Texas, Appellee.

No. 04-84-00120-CR.

Court of Appeals of Texas,

San Antonio.

Feb. 28, 1986.

Mark Stevens, San Antonio, for appellant.

Sam Millsap, Jr., Margaret Embry, Criminal Dist. Attys., San Antonio, for appellee.

Before CADENA, C.J., and ESQUIVEL and DIAL, JJ.

OPINION

DIAL, Justice.

This is an appeal from a conviction for the offense of murder. Defendant was found guilty by a jury which assessed his punishment at 99 years' confinement.

Defendant first complains of the State's use of his post-arrest, post-Miranda silence for impeachment. Following a motion to suppress hearing out of the presence of the jury the trial court cautioned the State's witnesses not to refer to the defendant's post-arrest silence. In the presence of the jury, in response to the question by the prosecutor "At which point what did you do," Detective Tart testified as follows:

By this time, Bonny had come out of the restroom, we sat her down on the bed next to Wayne, Detective Thomas removes his right card, reads them their rights, asked them if they have any statements to make, which there was no response.

The defense attorneys objected to the detective's remark, claiming that it was a comment on the defendant's Fifth Amendment right and a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The trial court sustained the objection and instructed the jury to disregard the statement. The defendant's request for mistrial was denied. Doyle does hold that it is fundamentally unfair and a deprivation of due process to allow an arrested person's silence to be used to impeach an explanation subsequently offered at trial. Id. at 611, 96 S.Ct. at 2241. Doyle and the Texas cases cited by defendant following it, Cuellar v. State, 613 S.W.2d 494 (Tex.Crim.App.1981) and Franklin v. State, 606 S.W.2d 818, 850 (Tex.Crim.App.1979), apply to situations where the accused remains silent after his arrest but at the trial testifies to exculpatory facts. Under those circumstances, it is impermissible for the prosecutor to use the defendant's previous silence to impeach his credibility. Here the prosecutor was not attempting to impeach the credibility of the defendant nor was he even soliciting a comment on the defendant's refusal to make a statement. The testimony of the detective was partially unresponsive. The unresponsive portion was admittedly prejudicial.

Where prejudicial information is inadvertently placed before a jury, the general rule is that an instruction by the trial judge to the jury to disregard such answer will be sufficient to cure any unresponsive answer. Williams v. State, 643 S.W.2d 136, 138 (Tex.Crim.App.1982). Under the facts of the case, the instruction cured any possible error. The first ground of error is overruled.

Under four grounds of error defendant next complains of a portion of the following jury argument made by the prosecutor during the punishment phase of the trial.

Now, this charge says here, if you wish, you can use voluntary intoxication as a mitigation of--to the penalty to be attached to this offense. This is within this charge.

Now, that's something I want to talk about. You know, this is not a case where, you know, these people were prescribed some diet pill by their doctor and the side effect send them berserko. These people knew what they were doing. This defendant knew. He was real good at it. In fact, he's the one that taught Bonny Gail Ford about it. Apparently started shooting preludin when she met him.

You know, I don't know how you feel about life or how you feel about Bexar County or what you see, but can you think of anything worse than a murder by a doper and that's what we've got.

(Objection by Defense Attorney.)

Thank you. Are you going to excuse his conduct because he's a dope addict? Are you going to find this murder less reprehensible because he's a dope addict? You know, you've got that law and there is a reason for it. And I submit to you that one of the reasons for you--

(Objection by Defense Attorney.)

I'll submit to you that it was his abuse, maybe, I don't know, but it really--it showed the lack of respect of the law to you. Now--

(Objection by Defense Attorney.)

Ladies and gentlemen, if you want to come back with a verdict and you want to tell Waldo and you want to tell the prosecutor here and the State of Texas and all these people sitting out there, all of them there looking at you, what you think about a murder by a couple of people who are high on 'speed'--

(Objection by Defense Attorney.)

Each objection complained that the prosecutor was asking the jury to consider other offenses in assessing punishment. The defendant relies on Klueppel v. State, 505 S.W.2d 572, 574 (Tex.Crim.App.1974), for the proposition that the State is not entitled to ask the jury to assess punishment for collateral crimes which may have been admitted in evidence and to add such punishment to the penalty assessed for the offense for which the defendant is on trial.

Considerable evidence was developed concerning the defendant and his companion using a quantity of illegal drugs on the day in question. Included in the charge to the jury at the end of the guilt/innocence phase of the trial were instructions that voluntary intoxication from any substance does not constitute a defense to the commission of crime. The charge to the jury on punishment included the following:

You are instructed that under our law neither voluntary intoxication nor temporary insanity of mind caused by voluntary intoxication shall constitute any defense to the commission of crime. Evidence of temporary insanity cause by voluntary intoxication may be considered in mitigation of the penalty attached to the offense.

By the term 'intoxication' as used here, is meant disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

We do not view the above argument of the prosecutor as a request that the jury assess punishment to the defendant for use of illegal drugs in addition to the crime of murder. It was instead a legitimate effort on the part of the prosecutor under the evidence heard and the instructions received by the jury to state why voluntary intoxication from the use of drugs should not be a mitigating factor in this particular trial. The jury could of course consider all the facts and circumstances surrounding the commission of the offense in determining the punishment to be assessed, and the prosecution could so argue. Id. at 574.

Grounds of error two, three, four and five are overruled.

In ground of error number six the defendant urges that fundamental error was committed by the trial court in submitting a charge to the jury on the law of murder which did not negate the question of sudden passion.

The State had shown by circumstantial evidence that the defendant and his companion Bonny Ford had been involved in the death of a woman, beaten with a hammer. The defendant's fingerprints were found on a beer bottle at the scene. Ford's purse and her footprint were found at the scene. Police found clothes in the motel room occupied by the defendant and Ford containing bloodstains of the same blood type as the deceased. Defendant had scratches on his hands and on his back. Ford testified that she had knocked the deceased down, choked her, and hit her in the head with a hammer and that the defendant had only helped her move the body. The defendant's version was that he was struggling with the deceased when Ford hit her with the hammer. He admitted hiding the body.

There was no evidence from any source that the defendant was under the influence of sudden passion arising from an adequate cause. Bonny Ford testified that she was angry with the deceased because the deceased had fired her on a prior occasion and was keeping a Backgammon game of the defendant's as security for an alleged debt. Ford's explanation for her anger was, "there is just a whole lot more to it than the fact that she lost two pieces out of my Backgammon board, there really is. And I could not have been more angry with that lady."

If Bonny Ford was under the influence of sudden passion, there is no evidence that it was the result of anything other than former provocation.

The defense did not object to the manner in which the court charged the jury on voluntary manslaughter or sudden passion. The charge was actually submitted in language similar to that requested by the defense.

The jury was instructed on the law of criminal responsibility for conduct of another. The portion of the charge applying the law of murder to the facts did not negate the question of immediate influence of sudden passion. For that reason the defendant contends that the charge was fundamentally defective under Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983). Cobarrubio would have required a reversal, but it has since been modified by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) and Lawrence v. State, 700 S.W.2d 208 (Tex.Crim.App.1985). In Almanza the Court of Criminal Appeals concluded that if the defendant claims error in the charge not identified at trial by appropriate objection, there will be a reversal only if the error deprived the defendant of a fair and impartial trial, i.e., "egregious harm." The degree of harm "must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza 686 S.W.2d at 171.

Reviewing all of the evidence on the issues of sudden passion and adequate cause indicates that it is a very close question as to whether the trial judge need have charged on voluntary manslaughter at all. As set out above, there is no evidence that raises the issue of sudden passion on the part of the defendant. The only...