Wilkerson v. State

• Decision Date: 14 May 1986
• Docket Number: No. 69291,69291
• Citation: 726 S.W.2d 542
• Parties: Richard James WILKERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 542

726 S.W.2d 542

Richard James WILKERSON, Appellant, v. The STATE of Texas, Appellee.

No. 69291.

Court of Criminal Appeals of Texas En Banc.

May 14, 1986.

C. Logan Dietz, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Kathlyn Giannaula, and Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A.Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings six grounds of error before this Court. The sufficiency of evidence to support the verdict and sentence is not contested. We will affirm.

In his first ground of error, appellant contends that the trial court erred in denying his motion to suppress a confession made a few hours after he was arrested pursuant to a warrant based upon an insufficient affidavit. The affidavit upon which the arrest warrant was based gave a description of appellant, and further stated:

"As probable cause for which your affiant says that on July 1, 1983, your affiant spoke with Henry Kersten, a person your affiant knows to be a Lieutenant with the Houston Police Department Homicide Division who told your affiant that he had gone to a place of business commonly known as Malibu Grand Prix at a location near the intersection of Highway 59 and Westpark Streets in Houston and there he met Mark Villasana. Lt. Kersten told your affiant that the said Mark Villasana told him that he had discovered the body of a person he knows to be Ron Harris at 8:15 AM on July 1, 1983. Lt. Kersten said he examined the body of Ron Harris and found him to be dead of apparent stab wounds and he told your affiant that the safe at the business appeared to have been rummaged through.

Your affiant next spoke to Jerry Randall Fonzia who told your affiant that she is the mother of James Edward Randall and the aunt of Richard James Wilkerson. She told your affiant that on June 30, 1983, she spoke to Richard James Wilkerson who told her that he planned to rob the Malibu Grand Prix where he previously worked to steal $5,000.00. Mrs. Fonzia told your affiant that she knew the said Richard James Wilkerson to have been employed at the Malibu Grand Prix described at the location above.

The said Mrs. Fonzia next told your affiant that earlier the same day [presumably, July 1, 1983], she had spoken with her niece Polly Michele Winn who told Mrs. Fonzia that James Edward Randall and Richard James Wilkerson arrived at her house at approximately 6:00 AM on July 1, 1983, and that Polly Michele Winn had seen both boys in possession of a large sum of money. Polly Michele Winn further stated that she had personally handled some of the money possessed by James Edward Randall and found some of the bills to have what appeared to be blood on them."

Appellant contends that the affidavit is insufficient because it contains "double hearsay," and there is no indication that Mark Villasana, Jerry Fonzia or Polly Winn are credible.

In Hennessy v. State, 660 S.W.2d 87, 91 (Tex.Cr.App.1983), this Court stated that:

"Hearsay-upon-hearsay may be utilized to show probable cause [in an affidavit] as long as the underlying circumstances indicated that there is a substantial basis for crediting the hearsay at each level." [citations omitted].

In the instant case, the affidavit alleges that Villasana told Kersten that the body found was that of Ron Harris. Kersten was a police officer investigating the incident and the information related by him merited belief. See Gish v. State, 606 S.W.2d 883 (Tex.Cr.App.1980). Also, Villasana's identification of the body, which was later found to be accurate, was founded upon personal knowledge and also was credible. We find that there was a substantial basis for crediting the information related, despite its characterization as hearsay-within-hearsay.

The affidavit also alleges that Winn told appellant's aunt that she had seen appellant shortly after the murder with a large sum of money, and that Winn had personally handled some of the money possessed by an accomplice which appeared to have blood on it. The information related by appellant's aunt is entitled to some credibility given her relationship to appellant. The information related by Winn suggests personal and direct knowledge on her part and is also entitled to credibility. Thus, the affidavit was sufficient to present a neutral and detached magistrate with sufficient and proper information to justify issuance of an arrest warrant. See Armstrong v. State, 718 S.W.2d 686 (Tex.Cr.App.1985); and Thomas v. State, 701 S.W.2d 653 (Tex.Cr.App.1985).

Appellant also contends that the affidavit is infirm because the named informants are not alleged to be credible. When the affidavit contains information given by a named informant, this Court has held that the affidavit is sufficient if the information given is sufficiently detailed so as to suggest direct knowledge on his or her part. Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.1977) at 804 citing Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976); and Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976), at 19 citing Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972).

The affidavit used in the instant case contained information from named citizen informers, including appellant's aunt. The information imparted by those persons adequately indicated that they had personal or direct knowledge of the matters they asserted. Thus, the information in the affidavit was sufficient to justify the issuance of the arrest warrant despite the lack of a statement that the informers named therein were credible. Therefore, the confession obtained pursuant to the warrant was properly admitted. Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in granting the State's challenge for cause to prospective juror Christine Tapia. Appellant contends that this testimony (attached as Appendix A) shows only that the prospective juror had a stricter standard of reasonable doubt, and therefore was not subject to exclusion on a challenge for cause.

Pursuant to Art. 35.16(b)(3), V.A.C.C.P., the State is entitled to have a prospective juror excluded for cause if the juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely. If a prospective juror manifests an intention to hold the State to a stricter standard of proof than that of beyond a reasonable doubt, then that juror is subject to a challenge for cause under Art. 35.16(b)(3), supra. Franklin v. State, 693 S.W.2d 420 (Tex.Cr.App.1985); Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983); Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983); and Cannon v. State, 568 S.W.2d 344 (Tex.Cr.App.1978). When we consider the prospective juror's testimony, we must accord due deference to the trial court's determination given its position to gauge the juror's sincerity and demeanor. Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985) and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

In the instant case, prospective juror Tapia made it clear that she would require the State to prove its case by a more stringent standard of proof than beyond a reasonable doubt. We find that the trial court did not err by granting the State's challenge for cause to this prospective juror. See Franklin, Hawkins, Woolls, and Cannon, supra.

In this ground of error, appellant also contends that the trial court erred in refusing to permit appellant to question the juror further. The record reflects no request on appellant's part to do so. Appellant's second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in denying his motion to video-tape a mannequin used before the jury to simulate the deceased. Appellant argues that he was unable to preserve the manner of its use for review on appeal, and was thereby denied due process of law.

The record shows that appellant filed a written request for $3,000.00 to cover the cost of video-taping the State's use of the mannequin, which the trial court denied. At trial, the mannequin was used by the State to illustrate the testimony of the medical examiner, who testified regarding the location of the stab wounds on the deceased's body. During cross-examination of the medical examiner, appellant's attorney elicited testimony describing the mannequin's dimensions and appearance. The trial court granted appellant's request to photograph the mannequin. The record contains several photographs of the mannequin which show the markings referred to by the medical examiner during his testimony regarding the deceased's wounds.

Appellant concedes that there is little caselaw on this issue, and asserts in his brief:

"Obviously, a mannequin could be used by the State to the unfair advantage of a defendant in a criminal trial merely through the manner of its use. This is especially true in final argument where a prosecutor could waive and stab a knife at a mannequin, thus perhaps injecting acts not in the record in the minds of the jurors. Nothing would be preserved for review by the court reporter because the reporter is constrained to report only words, not acts."

Appellant does not allege that the prosecutor made any hostile moves toward the mannequin, but only that he would not have been able to preserve any such acts for review.

The rules regarding the record on review are set forth in Art. 40.09, V.A.C.C.P. Subsection (4) of that article provides, in pertinent part:

"A transcription of the [court] reporter's notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony, argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other...