Brian Keith Degrate v. The State of Texas--Appeal from 54th District Court of McLennan County

AFFIRMED

JUNE 21, 1990

NOS. 10-89-036-CR

10-89-037-CR

Trial Court

#'s 88-939-C &

88-940-C

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

BRIAN KEITH DEGRATE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 54th Judicial District Court

McLennan County, Texas

* * * * * * * * * * * * *

On pleadings of not guilty, appellant Brian Keith Degrate was found guilty by a jury in a consolidated trial of the felony offenses of murder and possession of a prohibited weapon. Punishment was assessed by the jury at confinement in the penitentiary for a term of forty years for the offense of murder and confinement in the penitentiary for a term of fifteen years for the offense of possession of a prohibited weapon. Appellant seeks reversal of the judgments of conviction on eight points of error contending (1), (2) and (3) his Batson objection was improperly overruled; (4) his confession should not have been admitted into evidence because it was the fruit of an illegal arrest; (5) his record as a juvenile offender was erroneously allowed into evidence during the punishment phase of the trial; (6) the hearsay statement of a State's rebuttal witness was improperly allowed to impeach appellant's witness on defense; (7) and (8) appellant's requested instructions to the jury on mistake of fact and self-defense were improperly overruled.

The two cases have been briefed together on appeal by appellant and the State, and we shall review them together.

Appellant sets forth correctly in his brief that "Following completion of the voir dire [of the jury venire], a petit jury was selected and seated, and the remaining venire panel dismissed, whereupon appellant objected outside the presence of the jury that [the prosecutor had] excluded all minority races from the jury panel, resulting in an all-white jury panel, thus raising a Batson // objection"; that "Appellant's attorney further stated for the record that Appellant, Brian Keith Degrate, is a Black Male"; and that the record is unclear as to whether or not the petit jury was sworn before or after appellant made his Batson objection. After the court had heard the prosecutor explain the use of his peremptory strikes against the minority members of the venire panel, appellant's Batson objection was overruled. Errors assigned to that ruling are set forth in appellant's first three complaints on appeal. They are overruled because appellant's Batson objection was not timely, since it was not made until after the venire panel was dismissed. Henry v. State, 729 S.W.2d 732, 737 (Tex.Cr.App. 1987); Cooper v. State, S.W.2d (Tex.Cr.App. 1990), case number 211-89, opinions delivered March 28, 1990, and June 6, 1990. Points of error 1, 2 and 3 are overruled.

The indictment charging appellant with possession of a prohibited weapon alleged that he possessed "a short-barrel firearm, to-wit: a rifle." The indictment charging appellant with causing the death of Joyce Marie Carpenter contained three counts alleging that "with a deadly weapon, to-wit: a firearm," appellant (1) intentionally caused the death of Carpenter by shooting her in the chest, (2) caused the death of Carpenter when committing an act clearly dangerous to human life by shooting at Roberta Henderson and several other named persons, intending to cause serious bodily injury to those persons, and (3) recklessly caused the death of Carpenter by firing a firearm in her direction. All three theories of the homicide alleged by the State were submitted to the jury. The prohibited weapon established by the evidence was a sawed-off .22-caliber rifle.

Appellant's confession inculpated him as the owner and possessor of the sawed-off rifle on the occasion in question and as the person who fired the shot that killed the deceased. Appellant complains in his fourth point of error that his confession of guilt was erroneously admitted into evidence because it was the fruit of an illegal arrest, arguing that the arrest should have been made but was not made under a warrant. We overrule this complaint because any error which might have occurred was waived when appellant admitted his guilt and the truth of his confession, line-by-line, during his testimony at the punishment phase of the trial. Owens v. State, 503 S.W.2d 271, 272 (Tex.Cr.App. 1974); Daugereaux v. State, 778 S.W.2d 577 (Tex.App.--Corpus Christi 1989, no pet.); Schwede v. State, 707 S.W.2d 731, 732 (Tex.App--Beaumont 1986, no pet.); DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Cr.App. 1985).

The State's witnesses on the issue of punishment included a former field worker for the County Juvenile Probation Department, a parole officer for the State Youth Commission and two city police officers who testified that appellant's reputation for being a peaceful and law-abiding citizen was bad. Appellant testified at the punishment phase of the trial, held one year after the offense was committed, that his age was eighteen. In his fifth complaint, appellant urges reversible error in the reputation testimony from the four witnesses just mentioned on grounds that the evidence was of such a nature as to inform the jury of prior juvenile delinquency adjudications against appellant, inadmissible under the provisions of Art. 37.07, Vernon's Annotated Code of Criminal Procedure, at the time the adjudications were made, and that the evidence was of such a nature as to at least inform the jury that appellant had a juvenile record. These arguments are without merit. None of the witnesses was asked about any adjudications of juvenile delinquency or other specific matters. Their testimony concerned only the general reputation of appellant for being a peaceable and law-abiding citizen. There was no evidence introduced before the jury that appellant had a juvenile record. After being qualified, a juvenile officer is as competent as any other witness to testify concerning a defendant's reputation. Ellis v. State, 543 S.W.2d 135, 138 (Tex.Cr.App. 1976); Chandler v. State, 744 S.W.2d 341, 345 (Tex.App.--Austin 1988, no pet.). The fifth point of error is overruled.

In his sixth, seventh and eighth points of error appellant asserts that the trial court erred in permitting impeachment by hearsay testimony of appellant's only witness at the guilt/innocence phase of the trial, in overruling appellant's requested instructions to the jury on the issue of mistake of fact surrounding his knowledge that he possessed a prohibited weapon, and in overruling requested instructions to the jury on self-defense. These complaints are overruled because they were waived when appellant admitted his guilt at the punishment stage of the trial to both crimes for which he has been found guilty.

[T]he present law in Texas is that if a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of the trial, and admits his guilt to the crime for which he has been found guilty, he has, for legal purposes, entered the equivalent of a plea of guilty. The law as it presently exists is clear that such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial.

DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Cr.App. 1985).

As noticed earlier in this opinion in our discussion of point of error number four, at the punishment phase of the trial appellant admitted the essential elements of the State's case surrounding his shooting of the deceased. He also admitted that the weapon used was "a small .22-caliber sawed-off rifle." A picture in evidence of the firearm appellant used supports the testimony that it was a sawed-off .22-caliber rifle approximately eighteen and one-half inches long, with a barrel about nine inches long. A person commits the offense of possession of a prohibited weapon if he intentionally or knowingly possesses a rifle with a barrel of less than sixteen inches. V.T.C.A., Penal Code, sections 46.01(10) and 46.06.

Furthermore, considered on their merits, appellant's sixth, seventh and eighth points do not present reversible error. The evidence is virtually undisputed that appellant became involved in an argument with Roberta Henderson in front of an apartment complex; that Roberta threatened appellant with a knife; that appellant was carrying the weapon in question concealed under his coat; that Roberta followed appellant and Jerome Tatum down the sidewalk from the apartment complex to a bridge that crossed a nearby creek; that appellant and Jerome Tatum walked across the bridge while appellant and Roberta continued their argument; that as appellant crossed the bridge he removed the gun from under his coat, dropped the clip, picked up the clip and placed it in his pocket; that when he reached the end of the bridge he replaced the clip in the gun, told Tatum, "Rome, I'm going to scare these whores," then turned and fired two shots in the general direction of the apartment complex; and that one of bullets struck and killed the deceased, Joyce Carpenter. Jerome Tatum's testimony was substantially the same. In light of the entire record, if there was preserved error in the court's ruling on the admission of testimony impeaching Jerome Tatum, it is our determination beyond a reasonable doubt that the error made no contribution to appellant's conviction or punishment.

To raise the defensive theory of mistake of fact, evidence must show "that the actor through mistake formed a reasonable belief about a matter of fact." V.T.C.A., Penal Code, Section 8.02. There was no evidence at trial about appellant's beliefs surrounding his posession of the prohibited weapon or the nature of the weapon, although there was testimony concerning Tatum's thoughts about the gun. The evidence did not raise mistake of fact. Montgomery v. State, 588 S.W.2d 950, 953 (Tex.Cr.App. 1979).

When appellant fired the shots he was on one end of the bridge across the creek and Roberta Henderson was on the other end, a distance admitted by appellant of about twenty yards. Appellant could have easily retreated if he was in fear of harm, as he said he was; and in fact he turned his back toward Roberta and walked away after he fired the shots. Furthermore, there was no evidence of immediate need to use deadly force. The evidence did not raise self-defense. Bray v. State, 634 S.W.2d 370, 372-73 (Tex.App.--Dallas 1982, no pet.).

Appellant's points and contentions are overruled. The judgments are affirmed.

VIC HALL

DO NOT PUBLISHJustice