Zani v. State

• Decision Date: 25 September 1984
• Docket Number: No. 6-82-055-CR,6-82-055-CR
• Parties: Robert ZANI, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 144

679 S.W.2d 144

Robert ZANI, Appellant, v. The STATE of Texas, Appellee.

No. 6-82-055-CR.

Court of Appeals of Texas Texarkana.

Sept. 25, 1984.

Roy Greenwood, Austin, for appellant.

Ronald Earle, Andrew Forsythe, Austin, for appellee.

HUTCHINSON, Justice.

Robert Zani appeals his 1981 murder conviction and ninety-nine year sentence. He was convicted of the 1967 murder of George Vizard, a convenience store clerk. Zani raises numerous grounds of error, including the sufficiency of the evidence and the admissibility of evidence obtained through hypnosis. We disagree with Zani on all grounds and affirm the judgment.

The trial court granted the State's challenge for cause of two veniremen. During voir dire one venireman stated that in a circumstantial evidence case he would not and could not separate the guilt-innocence phase from the punishment phase and that the defendant's guilt or innocence would depend, to a certain extent, on the punishment available. A venireman is subject to challenge for cause by the State when he has a bias or prejudice against any phase of the law on which the State is entitled to rely for conviction or punishment. Weaver v. State, 476 S.W.2d 326 (Tex.Cr.App.1972); Tex.Code Crim.Proc.Ann. art. 35.16(b)(3) (Vernon 1966). While the venireman did state that the facts would determine punishment, he was not rehabilitated to the extent that he would follow the law as the trial court instructed. The venireman was properly excused.

Zani claims a second venireman was not absolutely disqualified. During voir dire this venireman indicated she would not consider evidence obtained through the use of hypnosis because she believed hypnosis in general was inherently untrustworthy and of poor credibility. Tex.Code Crim.Proc.Ann. art. 35.16(a)(9) (Vernon Supp.1984) provides that either party may challenge a venireman for cause if he has a bias or prejudice for or against the defendant. An inability to be fair and impartial to the State is an expression of bias for the defendant. Ransom v. State, 630 S.W.2d 904 (Tex.App.--Amarillo 1982, no pet.); see also, McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972). The trial court has discretion to determine if bias or prejudice actually exists to such a degree that the prospective juror is disqualified and should be excused from jury service. Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982). The venireman was properly disqualified under Article 35.16(a)(9).

Zani contends he was denied due process because the trial court refused to conduct a full pretrial evidentiary hearing on the admissibility of Jerry Mogoyne, Jr.'s post-hypnotic testimony. At a hearing on Zani's motion to suppress, the trial court heard the State's evidence which included testimony from the expert who observed the hypnotic session, the hypnotist who conducted it, Jerry Mogoyne, Jr., and a recording of the session. The court refused to suppress the post-hypnotic testimony and refused to permit Zani to present his expert witness to question the accuracy of hypnotic testimony in general. The court need not hold an evidentiary hearing, but may determine the merits of a motion to suppress evidence on the motion itself, opposing affidavits, or oral testimony. Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967); Tex.Code Crim.Proc.Ann. art. 28.01, § 1(6) (Vernon Supp.1984). The opponent of the testimony may not attempt to prove the general unreliability of hypnosis, but may challenge the unreliability of the procedures used at the hypnotic session by introducing expert testimony at trial. State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981). The trial court had adequate evidence upon which to base its decision. See Nickerson v. State, 645 S.W.2d 888 (Tex.App.--Dallas), aff'd, 660 S.W.2d 825 (Tex.Cr.App.1983). We find no abuse of discretion and no error.

Zani asserts that he was denied discovery of a written statement and tape recording of Robert Riggs, as well as other evidence material, relevant, and favorable to him. A defendant has no constitutional right to inspect the State's entire file without specifically showing why it is exculpatory, Rigsby v. State, 654 S.W.2d 737 (Tex.App.-Houston [14th Dist.] 1983, no pet.), and he may discover only that which the trial court determines is material to the defense. Constitutional error is committed only if, after reviewing the entire record, the omitted evidence creates a reasonable doubt that did not otherwise exist. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980). The trial court ordered the State to produce all exculpatory evidence to Zani and to produce its entire file for an in camera review. On our review of the tape recording and sealed files, we find that they did not contain any inculpatory or exculpatory evidence not already discovered by Zani. The trial court did not abuse its discretion in denying this discovery.

Zani complains his federal and state constitutional rights were violated because the trial court refused to permit him to represent himself at trial. Zani originally requested and was represented by appointed counsel, but represented himself at a venue hearing. During that hearing the trial court removed Zani from this role and ordered appointed counsel to resume full representation. A defendant has the constitutional right of self-representation; Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); U.S. Const. amends. VI and XIV; Tex. Const. art. I, § 10; however, the record must establish that the defendant is aware of the consequences of what he is doing and that his choice is intelligently made. Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980). This right of self-representation may not be used to interfere with the orderly procedure and administration of justice. Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979). The record shows Zani did not know how to proceed at the venue hearing and was unable to competently represent himself; therefore, he was not fully aware of the consequences of self-representation and this choice was not intelligently made. Further, self-representation would have caused undue disruption and delay in the trial. In light of the record as a whole, we see no violation of the intent and language of Faretta v. California, supra.

The trial court denied Zani's motion for the appointment of a fingerprint expert and refused to hear testimony in support of the motion. At the time the motion was filed Zani had not incurred expenses for a fingerprint expert's assistance. Tex.Code Crim.Proc.Ann. art. 26.05 (Vernon Supp.1984) entitles counsel to reimbursement of investigation expenses only after they are incurred, and even then reimbursement is discretionary with the court. Refusal to pay expenses before they are incurred is not an abuse of discretion. Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). The defendant must show from the record any harm resulting from the court's refusal to furnish those funds. See Reed v. State, 644 S.W.2d 479 (Tex.Cr.App.1983); Quin v. State, 608 S.W.2d 937 (Tex.Cr.App.1980); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980). The pleadings and motion do not demonstrate any harm. The trial court did not abuse its discretion.

Zani argues that the evidence is insufficient to link him to the commission of the offense. In a circumstantial evidence case such as this, we review all of the evidence in the light most favorable to the jury verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Whether every reasonable hypothesis, other than the defendant's guilt, has been excluded is one criteria which may be applied. Each fact need not point directly and independently to the guilt of the accused: the cumulative effect of all of the incriminating facts may be sufficient to support the evidence. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983).

The evidence produced at trial includes the following. George Vizard was shot Sunday morning, July 23, 1967, while working as an attendant at a convenience store in Austin, Texas. Vizard's store manager saw him shortly before 7:00 A.M., July 23. At the store that morning, someone other than Vizard waited on some customers, and other customers left on finding no one on duty. At approximately 8:00 A.M. a customer discovered Vizard's body.

Zani lived in Austin at the time of Vizard's death. He worked at the store until five to six weeks before the murder and knew the floor safe combination, routine of the store, and amount of cash generally available on Sunday mornings. Prior to the murder Zani purchased a handgun which the State's ballistics expert witness believed could have been the murder weapon. The handgun's caliber and general barrel configurations matched those of the murder weapon. Additionally, these matching general barrel configurations were relatively rare and new in handguns used and manufactured in 1967. The ballistics expert could not positively state that the handgun was the murder weapon because of the leaded condition of its barrel.

Shortly after the murder Jerry Mogoyne, Jr. and Jerry Mogoyne, Sr. reported to police officers that on the date of the offense someone other than Vizard waited on them and described a person similar to Zani as the one helping them. In 1980, Mogoyne, Jr. and Mogoyne, Sr. were placed under hypnosis to refresh their memories of the day of the murder. Mogoyne, Jr. testified that he saw Zani in the store behind the cash register between 7:00 and 8:00 A.M. on July 23rd. Prior to hypnosis Mogoyne, Sr. tentatively identified Zani from a picture line-up, and, in a tape recording of his hypnotic session, said he saw a man resembling Zani inside the store waiting on customers. Zani's fingerprints were on three items, including a loaf of bread, found on the store counter the...