White v. State

• Citation: 517 S.W.2d 543
• Decision Date: 05 June 1974
• Docket Number: No. 48216,48216
• Parties: Richard Payton WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 543

517 S.W.2d 543

Richard Payton WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 48216.

Court of Criminal Appeals of Texas.

June 5, 1974.

On Rehearing Dec. 11, 1974.

Rehearing Denied Jan. 29, 1975.

Mark Schwartzman and William W. Morris, San Antonio, for appellant.

Ted Butler, Dist. Atty., Gordon V. Armstrong and Douglas C. Young, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted of sale of heroin; punishment, enhanced under Article 63, Vernon's Ann.P.C., was assessed at life.

Appellant contends that he was denied his right to compulsory process, in violation of his rights under the Sixth Amendment of the United States Constitution.

I.

The record reflects that prior to trial appeallant filed a motion alleging that Jimmy Martinez Leveine was present at the time the offense was alleged to have occurred, and would testify that appellant did not commit the offense, and alleging further that before the indictment or arrest of appellant an officer of the San Antonio Police Department instructed Leveine to leave Bexar County and provided him with funds to do so, knowing Leveine would be a material witness for the defense, and for the purpose of concealing evidence and depriving appellant of the right to compulsory process to secure witnesses in his behalf.

Testimony presented at the hearing prior to trial reveals that Leveine was present at the time of the alleged transaction. Officer Chevera, to whom the sale was made, testified that Leveine was his informer and part of his 'cover' to protect the secret nature of his undercover work, and that as such Leveine was present prior to, during, and after the transaction, and was in fact the only person present other than appellant and Chevera himself. Later, Lieutenant Slocum testified that after the conclusion of Leveine's work with Chevera he and Leveine had a conversation. The statement of facts reflects:

'Q. What did you discuss at that time?

'A. He thought he ought to leave town and I thought it was a real good idea.

'Q. You told him you thought it was a good idea if he left town?

'A. Yes, sir.

'Q. When you told him it would be a good idea if he left town did you give him any money to do so?

'A. He said he needed some money to eat and I gave him or had seventy-five dollars sent to him.

'Q. You didn't give him any money at that time?

'A. No, sir.

'Q. How did you send him the money?

'A. By one of my officers.

'Q. . . . you know that Jimmy Leveine had been working with Albert Chevera on a day-to-day basis on these cases; don't you?

'A. Yes, sir.

'Q. And so you knew most of the cases that Chevera had made, that Jimmy Leveine had been present with him at the time?

'A. Probably a good percentage of them.'

At the close of the pretrial hearing, the court found:

'He (the witness, Leveine) has not been concealed, you have been told his name and who he is. * * *

'The basis of your argument is the government or prosecution is dependent upon the whims of a snitch, which cannot be. Whether he stays around or not would be enough to defeat the government's right to prosecute a man for trial, which can't be.'

Appellant asserts this record reflects a denial of his right to compulsory process. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), this constitutional right was described in the following language:

'The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.'

II.

Concerning the showing necessary to support a claim of denial of compulsory process, this Court in Hardin v. State, 471 S.W.2d 60, at 62, stated:

'Where a defendant seeks a continuance because of an unavilable witness the Texas Legislature demands that the motion set forth the 'facts which are expected to be proved by the witness, and it must appear to the court that they are material.' Article 29.06(3), V.A.C.C.P. It is further required that 'the facts set forth in said motion were probably true.' Article 29.06(6), V.A.C.C.P. As a minimum requirement to determine the materiality and truth of the facts set forth the Legislature has also determined that '(a)ll motions for continuance on the part of the defendant must be sworn to by himself.' Article 29.08, V.A.C.C.P.

'This Court has consistently and recently held that no reversible error exists where a defendant sought either a continuance to get his witness, or an 'attachment of witness,' where the defendant did not offer a sworn statement at the time of the motion saying what the witness would have testified to. Brito v. State, Tex.Cr.App., 459 S.W.2d 834. See also Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706.

'The same rights of a defendant are at stake when he seeks a continuance to get a witness, an attachment of a witness, or a bench warrant for a witness: has his constitutional right to compulsory process of a witness been denied. The same issue is before the court in each instance: whether the request of a witness by the defendant is a futile act which will only serve to cause delay rather than to promote justice. Where a defendant seeks compulsory process for a witness to appear in his defense which results in a continuance, an attachment, or a bench warrant the court is within its rights to demand sufficient appearance of the materiality of the witness' testimony. An affidavit or sworn testimony by the defendant saying what the witness would testify to is a reasonable minimum requirement.

'In the instant case the appellant did not make a sworn statement and said nothing. His attorney took the stand during the trial to state that his work product and investigation convinced him that these five witnesses would, if present, have testified that appellant could not possibly have been in the City of Midland on the day alleged in the indictment. He further testified that neither he nor his investigator had seen or talked to any of the five witnesses and did not know what they would say. The record is devoid of any showing during the trial or in a motion for new trial of what the witnesses would have testified or if they were willing to testify.'

In the instant case there is no such showing of what Leveine would have testified. Were this a claim of a denial of a motion for continuance, an attachment, or a bench warrant, this failure would be sufficient to support the conclusion that materiality was not shown. Here, however, appellant does not claim the ruling of the trial court denied his right to compulsory process, but rather, that his right to compulsory process was pre-empted by action of the State in the nature of suppression of evidence. The allegations of appellant, if true, would constitute a most serious violation of his right to compulsory process, since it alleges elements of suppression of evidence as well, which, by accomplishing a successful 'disappearance' of the witness, result in defeating the possibility of compelling his attendance even before the right can be asserted, and result in such a thorough suppression of evidence as to prevent a showing of precisely what the evidence would be, since the witness was gone before any chance to determine what his testimony would be even arose. ¹

The record, however, does not support appellant's claim that agents of the State instructed Leveine to leave town for the purpose of concealing evidence and depriving appellant of the right to compulsory process. But even though the record shows neither such direct instruction nor such condemnable purpose, it does show, by Officer Slocum's own admission, that he knew Leveine was an active participant in making many cases with Chevera, and that with such knowledge he actively participated in facilitating and encouraging Leveine's departure, by approving of Leveine's suggestion that he (Leveine) leave town, by promising him money to assist him in leaving, and by having the promised money delivered by one of his officers. Thus, the record does show State action resulting in Leveine being unavilable as a witness.

Since Leveine was not available, it is impossible to say precisely what his testimony would be, but since he was the only witness present at the alleged transaction other than the accused and the undercover agent, all the evidence on materiality points unquestionably toward the conclusion that Leveine would be a material witness. ² Under a claim of State action resulting in the unavailability of a witness, as opposed to a claim of trial court error in refusing to compel attendance of a witness, ³ we find the showing of materiality was sufficient. Materiality, however, is not the sole question before us.

III.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, it was held:

'. . . that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'

That principle was reaffirmed in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, with this observation:

'Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence.'

Moore held the evidence therein not material. Such cannot be said of the situation here, as shown above, because of the nature of the 'suppression' involved. The action of the State complained of is not the withholding of...