Webb v. State

• Decision Date: 15 February 1989
• Docket Number: No. 074-87,074-87
• Citation: 766 S.W.2d 236
• Parties: John Will WEBB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 236

766 S.W.2d 236

John Will WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 074-87.

Court of Criminal Appeals of Texas.

Feb. 15, 1989.

Gary A. Udashen, Dallas, for appellant.

John Vance, Dist. Atty. & Patricia Poppoff Noble & Gary A. Moore, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for State.

Before McCORMICK, P.J., and W.C. DAVIS, WHITE and BERCHELMANN, JJ.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted in a joint trial of aggravated robbery and assessed 55 years in the Department of Corrections. V.T.C.A. Penal Code, § 29.03. Two co-defendants, Keith Busby and appellant's brother Clinton Webb, were also convicted of aggravated robbery in the same trial. The convictions and sentences of both co-defendants were reversed on direct appeal by the Dallas Court of Appeals. Busby v. State, 722 S.W.2d 154 (Tex.App.--Dallas 1986). Appellant's conviction was affirmed in an unpublished opinion by the appeals court. Webb v. State, No. 05-85-01404-CR (Tex.App.--Dallas, Dec. 1, 1986). Very recently this Court affirmed the judgment of the appeals court in the causes of appellant's co-defendants. Webb and Busby v. State, 763 S.W.2d 773 (delivered January 11, 1989). We granted appellant's petition to review his second ground for review wherein he contends the Court of Appeals erred in overruling his ground of error complaining of the trial court's action in prohibiting a defense witness from testifying. We will reverse the judgment of the court below.

This case concerns the robbery and murder of a young Dallas man who was employed as the manager of an Exxon self-service gasoline station located on the corner of Lancaster and Kriest Streets in the Oak Cliff subdivision. At trial, several witnesses whose testimony has particular significance to the issue before us testified. Carl Jennings was a friend of Tommy Pettit, the deceased. Jennings visited with Pettit on the night of the robbery and murder, inside the small, two room manager's office at the station. He testified that between 3 and 4 a.m. on the morning of April 27, 1985, a friend of the deceased named "John" who worked at a nearby paint and body shop came by the station and asked to be admitted to the locked office. After talking with the deceased for about twenty minutes, "John" left to "make a run", saying he would return. Jennings told the jury that "John", whom he identified as appellant, returned a short time later and parked his car in front of the station near some phone booths. Again, the deceased opened the office door for appellant. Jennings noticed another man who circled the glass-enclosed office and stopped just outside the locked door. According to Jennings, appellant then stood up, pulled a gun out of his pants, pointed the weapon at the deceased and told him to open the door.

When Pettit opened the door, two men rushed inside and pushed Pettit and Jennings into the adjoining storeroom of the office building where they were told to lie on the floor face down. One of the two men, whom Jennings identified as Clinton Webb took appellant's gun. He and another man began to beat Pettit, causing him to cry out for help. Jennings was afraid to move and could only listen to the assault. He heard Pettit protest that he had no means to open the office time-safe, and further heard appellant's brother tell the others that he and Pettit would have to be killed because they could identify the robbers. Jennings looked up and the last thing he remembered seeing was Clinton Webb raise and point the gun at him. Later, when he regained consciousness, Jennings discovered he had been shot in the head and that Pettit lay dead with a similar wound. It was on the basis of Jennings' identification and description of appellant that the latter was arrested after reporting to his parole officer. According to police witnesses, appellant then signed two separate confessions in the following days.

Appellant testified in his own defense. He said he had picked up Raymond Eugene, a.k.a. "Leon" Watkins on the night in question and had driven Watkins to the Exxon station. Appellant had taken Watkins to the station several times before at his request. Each time, appellant was told Watkins could get money from the manager, Pettit. Appellant said it was through Watkins that he had met Pettit. On the night of the robbery and murder, Tommy Pettit refused them entry to the manager's office, so appellant and Watkins "made a run" to a bootlegger's establishment and then spent some time shooting dice at a gambling house.

According to appellant, Leon lost all his money shooting dice and suggested they return to the station so he could get more cash. When Pettit let them in the side door this time, appellant saw Carl Jennings was also sitting in the office. According to appellant, both Jennings and Pettit were Leon's homosexual lovers. While Leon and Pettit went into the back room, appellant and Jennings sat in the glass-enclosed office. Appellant said Jennings offered him the opportunity to make some money which he refused. He then decided to leave. As he stood up, two unidentified men walked up to the cashier's window and after talking with Jennings were invited to come inside. Appellant said he left the office as the two men entered. Appellant drove home, was admitted to the house by his brother Clinton, and slept until morning. After he was arrested, appellant testified, he was taken to the police station and "forced" into signing two statements over a period of several days, though he could not read even the simplest words and could only write his name. In both confessions appellant incriminated himself in the robbery but de-emphasized his own role in the incident. The only real distinction between the confessions is that in the May 2, 1985 version, appellant blamed "Leon" rather than Clinton for planning and execution of the robbery.

Leon Watkins testified for the State at the rebuttal stage of trial. Watkins was charged with the same crime as appellant and his co-defendants but had a separate trial setting. He testified appellant had planned the robbery and his own small part in the crime was to sit at the cash window and "act like the manager." Watkins told the jury he did not know the manager of the Exxon station by name, did not know either Tommy Pettit or Carl Jennings, and denied ever receiving money from either individual. He stated that he had never "asked" appellant to give him a ride to the station or to Jennings' apartment, but admitted driving with appellant to the station on one occasion other than the night of the murder.

In an effort to rebut Watkins' testimony, the defense called Elaine Adams to the stand. Adams identified herself as an "acquaintance" of appellant. The State objected to her testimony on the grounds that she had been in violation of the sequestration rule by her presence in the courtroom. A sub rosa hearing was subsequently held.

At the hearing, Adams testified she had been present in the courtroom since "eleven-something" that morning and had heard the testimony of the police officers and Watkins, as well as a portion of appellant's testimony. Solely on the basis that the "rule" had been invoked and violated, the trial court sustained the State's objection and refused to allow Adams to testify before the jury. In a bill of exception later taken by the defense, Adams testified she had known appellant for years and Watkins since April; was present in the car with appellant and Watkins at least three times when the latter would ask to be taken to the Exxon station "to get some money"; and was present with appellant inside the car while Watkins spent ten or fifteen minutes inside the station before returning to the car with money. In addition, Adams testified Watkins knew both Pettit and Jennings by name, and she and appellant drove Watkins to Jennings' apartment on at least one occasion. She did not know why Watkins received money on their trips to the station, but speculated it was for sexual services.

In his sole ground for review granted by this Court, appellant complains the trial court abused its discretion in disqualifying Adams as a witness under the "rule." See Arts. 36.03-36.06, V.A.C.C.P. ¹ We granted review to determine whether the issue was decided adversely to appellant in conflict with applicable decisions by this Court and agree that the question presented, as it impacts upon the right of a criminal defendant to present witnesses in his defense, is an important question of both state and federal law which should be clearly settled by this Court. See Tex.R.App.P. 200(c)(2) and (3).

The purpose of placing witnesses in a proceeding under the sequestration rule, as stated in Cook v. State, 30 Tex.App. 607, 18 S.W. 412 (1892), is to "prevent the testimony of one witness from influencing the testimony of another" Id., see also Archer v. State, 703 S.W.2d 664 (Tex.Cr.App.1986); Hougham v. State, 659 S.W.2d 410 (Tex.Cr.App.1983) (Clinton, J. concurring), by one witness either overhearing the testimony of another witness or talking to that witness regarding his testimony. As retired Presiding Judge John Onion explained in Carlile v. State, 451 S.W.2d 511 (Tex.Cr.App.1970), the jurisprudential roots of the rule may be traced to the Biblical story of Susanna and is a concept integrally related to the notion that both parties to an adversarial proceeding are entitled to a fair hearing in the interests of justice.

Issues concerning this evidentiary rule arise in two basic contexts: (1) where a party complains of the admission into evidence of certain testimony due to violation of the invoked rule by an adverse witness; and (2) the more rare case where the complaint is founded upon the party's own witness being excluded due to violation of the rule. In the former situation we have said that a violation of the rule is not in itself reversible error, but...