Washington v. State

• Decision Date: 20 November 1991
• Docket Number: No. 10-88-054-CR,10-88-054-CR
• Parties: Calvin Edward WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 110

822 S.W.2d 110

Calvin Edward WASHINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 10-88-054-CR.

Court of Appeals of Texas Waco.

Nov. 20, 1991.

Discretionary Review Granted March 4, 1992.

Walter M. Reaves, West, for appellant.

John W. Segrest, Crim. Dist. Atty., Doyle D. Glass, Asst. Dist. Atty., Ed Lane, Asst. Dist. Atty., Waco, for appellee.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

VANCE, Justice.

Appellant was convicted of the capital murder of Juanita White and assessed life in prison. See TEX.PENAL CODE ANN. § 19.03 (Vernon 1989). On appeal, he complains that the court erred when it (1) ordered him to submit a blood sample when probable cause was not established, (2) admitted a shirt into evidence when no connection was shown between the shirt and the offense, (3) forced his investigator to produce his work product, (4) allowed the State to improperly use a taped interview to bolster the testimony of one of its witnesses, and (5) refused to grant a mistrial after several instances of improper jury argument. He also asserts that the State failed to disclose exculpatory evidence under an order of the court. We will affirm.

THE OFFENSE

Juanita White was found dead in her home, beaten and raped, on the morning of March 2, 1986. The front door of her house had been kicked in. She had returned home from work about 10:00 p.m. on March 1. The jury was charged under the law of parties, the State having alleged in the indictment that Appellant, either acting alone or as a party with Joe Sidney Williams, intentionally killed Mrs. White in the course of committing burglary or sexually

                assaulting her. 1  The State produced evidence that Mrs. White died of blunt-force injuries and asphyxia by smothering or strangulation, that she had been sexually assaulted, that Appellant and Williams were together and in possession of her car on the morning of March 2, that Appellant sold items of property belonging to Mrs. White on the night of the murder, that Appellant told witnesses he had committed the burglary, that bite marks were on the body, and that Appellant was overheard saying that the bite marks were left as a "trace mark."   A jury convicted Appellant of capital murder but assessed a life sentence when it failed to affirmatively answer all of the questions required by article 37.071.  See TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon Supp.1991)
                

THE BLOOD SAMPLE

In point one, Appellant asserts that the court erred in ordering him to submit a blood sample because the order was not based on an affidavit which established probable cause to take the sample. He contends that the sample was taken in violation of the Fourth Amendment to the United States Constitution and article 1, section 9, of the Texas Constitution. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. Prior to trial Appellant contested the State's unsworn motion to require him to submit a blood sample. After the hearing, the court simply "granted" the motion and did not issue a search warrant. The blood sample was submitted to a laboratory for tests and the results were admitted into evidence.

Taking a sample of a defendant's blood is a search and seizure. Gentry v. State, 640 S.W.2d 899, 902-03 (Tex.Crim.App.1982); Ferguson v. State, 573 S.W.2d 516, 520 (Tex.Crim.App.1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979); Smith v. State, 557 S.W.2d 299, 301 (Tex.Crim.App.1977). To obtain a search warrant for blood, the state is required to comply with the provisions of article 1.06 and chapter 18 of the Code of Criminal Procedure. Smith, 557 S.W.2d at 301; see also Longoria v. State, 636 S.W.2d 521, 522 (Tex.App.--Texarkana 1982, pet. ref'd); TEX.CODE CRIM.PROC.ANN. arts. 1.06, 18.02 (Vernon 1977 and Vernon Supp.1991). A motion alone will not pass constitutional muster. Smith, 557 S.W.2d at 301.

Appellant's complaint is that the court's pre-trial ruling on the State's motion led to admitting testimony of the test results. The State contends that, because Appellant gave his written consent to the taking of blood, hair and saliva, any question of the validity of the court's pretrial order is immaterial. The witness who identified the consent form testified without objection that Appellant signed a form authorizing officers to take the samples. Thus, the State met its burden of showing that Appellant freely and voluntarily consented to the taking of a sample of his blood, and any error which resulted from the court's improper pretrial order was harmless. See Harris v. State, 790 S.W.2d 568, 584-88 (Tex.Crim.App.1989); Ferguson, 573 S.W.2d at 521; TEX.R.APP.P. 81(b)(2).

Additionally, the State was allowed to question the forensic serologist about tests run on the blood sample over this objection:

[Appellant's Attorney]: I object to any testimony of that nature because it's the product of actions invading Mr. Washington's Sixth Amendment rights under the United States Constitution.

The Court: All right, sir. I overrule that objection.

(Emphasis added). Noting that the Sixth-Amendment objection made when the test results were offered does not comport with the point on appeal, i.e., that the evidence was obtained in violation of the Fourth Amendment, we hold that Appellant's right to complain about the court's admitting the test results has been waived and nothing is presented for our review. See Sharp v.

State, 707 S.W.2d 611, 619 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988); White v. State, 543 S.W.2d 366, 369 (Tex.Crim.App.1976); Bouchillon v. State 540 S.W.2d 319, 322 (Tex.Crim.App.1976). We overrule point one.

THE SHIRT

In point two, Appellant asserts that the court erred when it admitted into evidence a shirt which the State did not connect to the offense. The shirt was seized during a search of Appellant's room, which was consented to by his sister. It contained human blood stains which were never identified. Witnesses for the State testified that they had seen Appellant wearing the shirt on other occasions. Appellant argues that, because the witnesses were unable to say that he was wearing it on the night of the murder, no connection exists between the shirt and the offense and, therefore, the shirt was not relevant evidence.

The State contends that the point is not properly preserved for appellate review. We agree. At trial, Appellant objected to the admissibility of the shirt on the grounds that it was obtained by an illegal search and seizure. His point on appeal is that the shirt was irrelevant because it was not connected to the offense. Because Appellant's point on appeal does not comport with his complaint at trial, we hold that Appellant's right to complain about the court's admitting the shirt has been waived and nothing is presented for our review. See id.

Even assuming that the point was properly preserved, we do not believe that the court erred in admitting the shirt into evidence. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX.R.CRIM.EVID. 401. Rule 402 provides in part: "Evidence which is not relevant is inadmissible." Id. at 402. The court has wide discretion in determining whether evidence is relevant to any issue in the case. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App.1991) (on rehearing); Paz v. State, 749 S.W.2d 626, 629 (Tex.App.--Corpus Christi 1988, pet. ref'd); TEX.R.CRIM.EVID. 401. In reviewing questions of this nature, we determine only whether the trial judge abused his discretion in allowing the evidence to be admitted. See id.

Rule 403 provides in part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." TEX.R.CRIM.EVID. 403. A court cannot refuse to weigh the probative value of evidence against its potential for unfair prejudice when called upon to do so by a sufficient objection; it has no discretion whether to engage in the balancing process. Montgomery, 810 S.W.2d at 389. When the court engages in the balancing process under Rule 403, its determination is also reviewed by the abuse-of-discretion standard. Id. at 391; TEX.R.CRIM.EVID. 403. The problem with Appellant's position on appeal is that the objection made at trial was not based on Rule 403. Thus, the objection being insufficient, the need to balance the probative value of the shirt against its prejudicial effect never arose. See id.

Based on the entire record, we cannot say that the court abused its discretion in admitting a shirt with human blood spots found in Appellant's room sixteen days after his arrest. See id. We overrule point two.

WORK PRODUCT OF APPELLANT'S INVESTIGATOR

An investigator working for Appellant interviewed a State's witness, Billy Joe Wilkerson, prior to trial. During trial, Appellant cross-examined Wilkerson about the interview. The State then asked the court to require the investigator to produce the tape of the interview, arguing that the tape was admissible to show Wilkerson's prior consistent statements because Appellant had impeached him and to clear up misleading questions on cross-examination. The court, after conducting an in camera inspection of the tape, admitted into evidence During Appellant's cross-examination, Wilkerson denied telling the investigator that the murder was committed by a person named "Don." He freely admitted, however, making all other statements to the investigator which Appellant wished to show as contradicting statements he made at trial. As to those statements, he stood impeached and prior contradictory statements were not admissible. See McGary v. State 750 S.W.2d 782, 786 (Tex.Crim.App.1988). As to the statements about "Don," the State, not the defendant, wanted to introduce prior statements made to the investigator. Thus, two questions are...