Charles Anthony Turner v. The State of Texas--Appeal from 263rd District Court of Harris County

IN THE

TENTH COURT OF APPEALS

NO. 10-92-126-CR

CHARLES ANTHONY TURNER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 263rd District Court

Harris County, Texas

Trial Court # 592,029

O P I N I O N

This is an appeal by Appellant Turner from his conviction for aggravated robbery (enhanced by two prior felony convictions), for which he was sentenced to 50 years in the Institutional Division of the Texas Department of Criminal Justice.

On February 18, 1991, at about 5:00 p.m., Henry Carpenter arrived at his apartment. On the parking lot of the apartment complex, he came across Appellant Turner who was with a group of other men. Carpenter was carrying an "Eight-ball" jacket. Appellant asked Carpenter what he would sell the jacket for. Carpenter replied he would sell it for $100. Appellant said the price was too high. Carpenter walked up the stairs to his apartment. Appellant told the men he was with he would pay $60 to anybody who would "jack" Carpenter's jacket. Frederick White agreed to accept Appellant's offer, and Appellant handed White a handgun. White went up the balcony of Carpenter's apartment, shot Carpenter and took the jacket. White ran from the area with the jacket and gun. Carpenter died from the wound.

Appellant was tried under the law of parties and, as noted, was convicted and assessed 50 years in prison.

Appellant appeals on four points of error.

Point 1 asserts that the trial court erred in denying Appellant a hearing on his timely filed motion for a new trial. Appellant timely filed a motion for a new trial asserting ineffective assistance of counsel. Such motion was denied by the trial court without a notice or hearing to defense counsel. A motion to reconsider the motion for a new trial and to grant a hearing was filed six days after the denial and that motion was denied the same day without any hearing.

Appellant asserts the trial court abused its discretion in refusing to hold a hearing on his motion for a new trial. A new trial hearing may be used to develop a record to show ineffective assistance of counsel at trial so that the issue may be adequately considered on appeal. Baldwin v. State, (Tex. App. Houston [14th Dist.]) 668 S.W.2d 762; Parker v. State, (Tex. App. Beaumont) 693 S.W.2d 640, 643-44.

When a defendant's motion for a new trial reasonably shows the existence of a ground for a new trial, he is entitled to a hearing on the motion if a factual determination is necessary to resolve the issue. McIntire v. State, (Tex. Crim. App.) 698 S.W.2d 657.

Appellant's motion for a rehearing asserted eight items of ineffective assistance of counsel. Items 1 and 2 assert that trial counsel should have objected to evidence which proved Carpenter sustained serious bodily injury. Photographs, taken at the autopsy, were admitted without objection, and the medical examiner was permitted to testify about the cause of death without objection.

The indictment alleged Appellant caused serious bodily injury to Carpenter by shooting him with a firearm. Trial was under the law of parties and the State had to prove that allegation. Trial counsel had no sound basis to challenge the admission of the evidence. A trial attorney is not ineffective for failing to object to admissible evidence. Cooper v. State, (Tex. App. Houston [1st Dist.]) 707 S.W.2d 686.

Item 3 complains that his trial counsel instructed him to plead "True" to his prior convictions only after he requested time to examine the pen packets of the prior convictions. Appellant does not assert or show that more time would have made any difference and does not allege that anything is wrong with the exhibits so that a lengthier examination would have revealed a deficiency. An attorney is not ineffective for not challenging valid evidence of prior convictions. Ex parte Gonzales, (Tex. Crim. App.) 790 S.W.2d 646. If this item has merit, Appellant could prove it based on the existing record without the necessity of a hearing.

Item 4 asserts that trial counsel failed to subpoena defense witnesses as requested, and required a friend of Appellant's to seek them out on the day their testimony was required, thus proceeding without time to properly prepare himself or the witnesses for their testimony. Appellant fails to allege how he was injured.

Item 5 asserts that trial counsel should have secured the testimony of Frederick White (the man who shot Carpenter) and failed to attempt to continue his case until the trial of White was completed. Appellant does not allege or show what the testimony of White would have been or how it would have benefited him.

Item 6, 7 and 8 assert that trial counsel failed to file any pretrial motions, failed to interview witnesses, failed to investigate the case, failed to prepare for trial, and failed to object to allegations made during trial that defense witnesses had been paid to come to court to testify. Here again, Appellant has not shown by the record or otherwise how trial counsel's actions or inactions as alleged injured him. Point 1 is overruled.

Point 2 asserts that the trial court commented on the weight of the evidence by admitting the written statement of defense witness Sonnier over defense objection.

Point 3 asserts the trial court erred by admitting Sonnier's prior written statement over defense objection.

The record shows that the trial judge simply overruled Appellant's objection to the admission of the statement and made no comment. It is the duty of the trial court to rule on objections to evidence without other comment. The court's statement of "sustained" or "overruled" does not itself constitute a comment on the weight of the evidence. This is what occurred here. Anderson v. State, (Tex. App. Fort Worth) 831 S.W.2d 50; Smith v. State, (Tex. Crim. App.) 595 S.W.2d 120, 123. Admission of the statement did not constitute a comment on the weight of the evidence by the trial court.

As to the admissibility of the statement where the witness unequivocally admits making the statement, the instrument itself is not admissible. McGary v. State, (Tex. Crim. App.) 750 S.W.2d 782, 787. But in this case, Sonnier did not unequivocally admit making the statement. On the contrary, he equivocated on whether he made the statement. At some point he swore that his trial testimony was entirely true while at other points he said the statement was entirely true. Both could not be entirely true. The statement was admissible. But assuming, without deciding, that the statement itself should not have been admitted, no harm resulted because the prosecutor had already impeached Sonnier based on reading portions of the statement. McGary, supra. In any event, the matter was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b)(2).

Points 2 and 3 are overruled.

Point 4 asserts the prosecutor committed prosecutorial misconduct by attempting to impeach defense witness Sonnier through questions asking if someone else testified differently, would they be lying, when no such evidence had been presented.

Appellant contends that the cross examination of defense witness Sonnier was improper because the prosecutor made reference to a statement Appellant's girlfriend may have made about how Sonnier came in contact with the police. The prosecutor did not state that the girlfriend made such a statement but asked Sonnier whether such a statement would be true.

Great latitude is allowed to show a witness's bias or motive. Carillo v. State, (Tex. Crim. App.) 591 S.W.2d 876. The trial judge has discretion over the extent to which a witness may be cross examined. Carillo, supra, p. 885, 886. We think the prosecutor's questioning was proper. Assuming, without deciding, that such was improper, the questions were harmless. The issue of how Sonnier came in contact with the police was a minor issue. Sonnier's testimony was put in serious question because of his prior inconsistent statement and not because of how he was led to the police. We say that, beyond a reasonable doubt, the error, if any, made no contribution to Appellant's conviction or punishment. Tex. R. App. P. 81(b)(2). Point 4 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 27, 1993

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