Williams v. State

• Decision Date: 04 January 1984
• Docket Number: No. 64651,64651
• Parties: Ivery WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 754

675 S.W.2d 754

Ivery WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 64651.

Court of Criminal Appeals of Texas En Banc.

Jan. 4, 1984.

Rehearing Denied March 28, 1984.

On Rehearing July 11, 1984.

Rehearing Denied Oct. 3, 1984.

Bruce Sadler, Amarillo, for appellant.

Thomas A. Curtis, Dist. Atty. and Steve Schiwetz, Asst. Dist. Atty., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for aggravated robbery in which the punishment was assessed at 99 years confinement.

The evidence established appellant and two companions, one male and one female, forced their way into the home of Clara Sherman shortly after her husband had left for work on the morning of March 22, 1979. Mrs. Sherman was alone in the house with her 89 year old semi-invalid mother. The intruders tied Mrs. Sherman up then ransacked the entire house.

After an hour, the intruders departed. Sherman freed herself and went immediately to check on her mother; she found the 89 year old woman "wadded up" at the foot of her bed, shaking and crying.

Vast amounts of jewelry, a color television, radios, clocks, clothing, liquor, luggage, binoculars, and a camera were taken in the robbery.

By his first ground of error, appellant contends the trial court erred in admitting the complainant's incourt identification of him because there was no clear and convincing evidence that such identification was not tainted by the suggestive identification process.

Immediately apparent in this contention is the assumption that a suggestive procedure was employed when the complainant identified appellant out of court. This assumption is not supported by the record and this ground of error will accordingly be overruled.

From the totality of the evidence, an integrated picture of events emerges notwithstanding conflicts in the testimony. ¹ There is no conclusive evidence that Sherman ever saw a photographic lineup containing a picture of appellant before she identified him in a corporal lineup on April 2, 1979. ² There is some evidence that she selected his photo from a spread shown her after the corporal lineup: defense counsel displayed a photo array to Sherman at the hearing which he called "defendant's exhibit number 3" and which contained a photo of appellant, but inexplicably, he did not have it admitted for the record. Mrs. Sherman indicated she thought she had been shown this exhibit and had selected appellant from it after the physical lineup procedure.

Thus, whatever suggestiveness may have preceded Sherman's incourt identification of appellant before us for review could not have occurred in any other than the corporal lineup. We therefore turn to that procedure.

The only complaint leveled at the corporal lineup is that of the six participants, only two could have been 35 years old, yet the complainant had described the robber as being between 30 and 35 years of age. The record reflects appellant was in fact 32 at the time of the lineup. The investigating officer, Deputy Hammonds, testified most of the lineup participants appeared to be from mid to late twenties.

A photograph taken of the participants was included in the record: they are approximately the same height and weight; of the same race; and all have facial hair similar to that apparently described by Mrs. Sherman ³ and, in fact, worn by appellant.

We are unpersuaded by appellant's argument to the effect that lineup participants appearing to be younger than appellant alone rendered the corporal lineup procedure impermissively suggestive. See Turner v. State, 600 S.W.2d 927 (Tex.Cr.App.1980). Since no impermissively suggestive pretrial procedure was employed, we need not address appellant's contention the pretrial procedure resulted in a substantial likelihood that Mrs. Sherman's incourt identification of him was in error. Compare Jackson v. State, 657 S.W.2d 123 (Tex.Cr.App.1983). Moreover, our review of Mrs. Sherman's testimony regarding her observations of appellant at the time of the offense, together with evidence she never failed to identify appellant and never identified anyone else as appellant, and her certainty in general, convince us her identification of appellant at trial was a product of her observations on the day she was robbed. Turner, supra.

This first ground of error is overruled.

In his second ground of error, appellant complains he was denied a fair and impartial determination of punishment when the jury discussed the effect of parole on the time he would be required to serve under a sentence. Article 40.03(8), V.A.C.C.P. ⁴

The Court has recently reaffirmed the notion that any discussion of parole by the jury is misconduct. Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982); see also Diaz v. State, 660 S.W.2d 93 (Tex.Cr.App.1983). However, such misconduct must operate to deny the defendant a fair trial before a new trial is necessitated. Id. The denial of a fair trial is demonstrated by a showing that "even a single juror voted for an increased punishment because of the discussion...." Munroe, supra, at 478.

At the hearing on appellant's motion for new trial appellant called Linda Joliff; the State called the jury foreman, Dr. Johnny Wise, and Billie Jean Shumate.

The uncontroverted testimony between these three jurors ⁵ was that the jury immediately took a vote on punishment. When quite divergent views were revealed by the vote, "everyone" began to talk about the effect of parole on the length of time one would actually serve on a given sentence. This was apparently prompted by the fact that the State had just established the 32 year old appellant had been given six life sentences in l965, ⁶ approximately 14 years before commission of the instant offense. After this discussion, it still appeared there was little consensus; the jurors decided a reading of the trial court's instructions might prove helpful. When Dr. Wise read the admonition against discussing parole, he stated something to the effect of: "Well, we have already blown that." Thereafter, though the subject was brought up again, Dr. Wise and other jurors would remind the group it was improper to discuss it.

Four or five jurors had taken the position from the outset that the State's request for 99 years was appropriate and they had no intention of agreeing to less. After a while, the jurors sent a note to the trial judge asking what was "the next step" since they could not "reach a unanimous verdict." ⁷ The trial court instructed: "Continue your deliberations." At this point, several jurors refused to participate further, stating their votes were cast. They left the conference table.

Mrs. Joliff testified she believed a punishment less than 99 years would be appropriate. Yet, by 10:30 p.m. (thirty minutes after the trial court's instruction to continue deliberations) a unanimous verdict for 99 years was returned.

The record as a whole demonstrates that Joliff relented and agreed to a 99 year sentence because of the late hour, hunger, fatigue, the unwillingness of several jurors to reconsider or further discuss the matter of punishment and her belief that the jury would not be released until they had reached a unanimous verdict. ⁸ Joliff was not willing to unequivocally state that the parole discussions affected her ultimate verdict, ⁹ much less that she ultimately agreed to a 99 year sentence "because of the discussion." ¹⁰ See Munroe, supra, at 478.

Accordingly, from the evidence adduced the trial court could reasonably have inferred it was not the improper discussion which caused Joliff to agree to 99 years. Moreover, the trial judge was in a position to observe Joliff's demeanor and interpret her testimony; thus, we are satisfied his personal observations of the witness coupled with her equivocal testimony justified his conclusion that the improper discussion was not responsible for the verdict. ¹¹ Therefore, appellant's punishment did not result from denial of a fair and impartial trial as explicated in Munroe, supra.

Appellant's second ground of error is overruled.

By his third ground of error appellant complains of the trial court's order purporting to cumulate his sentence.

The record reflects the trial court entered a sentence in this cause on July 16, 1979 which ordered appellant's immediate delivery to the Texas Department of Corrections, and his confinement there for not less than five nor more than 99 years. It then recited:

"Said sentence is to be stacked on the sentences currently being served by defendant, which are: Cause Number 70073, Tarrant County, three (3) years; Cause Number E8430JI, Dallas County, life; Cause Number E8428JI, Dallas County, life; Cause Number E8618JI, Dallas County, life; and, Cause Number E8545JI, Dallas County, 25 years."

Appellant filed his appellate brief in the trial court on November 30, 1979, and therein complained of the above recitation. In response, the trial court convened a hearing on January 11, 1980, one purpose of which was to pronounce "an amended sentence." Appellant's counsel objected to the resentencing procedure; he argued the effect of the original void cumulation order was that the sentence in the instant cause must run concurrently with other sentences extant, and the trial court's attempt to belatedly correct the cumulation order had the effect of increasing appellant's punishment after he had already begun service of the sentence. This objection was overruled. The trial court entered an "Amended Sentence" on the same day.

Thereafter, on February 27, 1980, appellant filed a supplemental brief in the trial court; he contended the trial court's belated sentencing hearing was without jurisdiction, and, if the trial court had jurisdiction to enter the amended sentence, the cumulation order reflected there was still void.

Appeal was duly perfected to this Court. However, upon our initial review of the record we...