MICHAEL A. HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

Reformed and Affirmed, and Opinion filed December 28, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00754-CR
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MICHAEL A. HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F86-70924-LH
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O P I N I O N
Before Justices Howell, Rowe, and Kinkeade
Opinion By Justice Rowe
        Michael Anthony Hernandez was convicted by a jury of the offense of murder. The jury assessed appellant's punishment at fifteen years' confinement in the Texas Department of Corrections. Arguing six points of error, appellant seeks to overturn his conviction. We sustain appellant's first point of error and order the trial court to delete from the judgment the finding that appellant used or exhibited a deadly weapon during commission of the offense. We overrule the remaining five points and affirm appellant's conviction.
        Appellant and his brother Robert were walking home from a pool hall at approximately 3:00 a.m. when they saw the lights on at the home of Alfonso "Poncho" Navarro, a friend of appellant. Even though appellant and Poncho were friends, they had fought several times. In the most recent fight three weeks earlier, Poncho had beaten up appellant. The Hernandez brothers stopped at the Navarro house and came to the door asking for Poncho. Maribel, Poncho's sister, answering from inside the door, told the brothers that Poncho was asleep. They then asked for Ruben Rueda, a brother of Maribel and Poncho. Maribel told her mother that appellant and Robert were outside. Mrs. Navarro went outside and talked with the appellant and Robert for several minutes. When Ruben came outside, his mother went back inside.
        Maribel testified that, at the request of her mother, she finally went outside to check on Ruben. From the porch Maribel saw appellant and Robert on the sidewalk holding Ruben up between them. Maribel testified that she saw a shiny object in Robert's hand as he and appellant made four or five "stabbing gestures" toward Ruben's chest. Maribel heard her brother say, "Hey, I thought you said everything was going to be cool." Maribel screamed, and several family members rushed out. Ruben's family took him to Methodist Hospital where he died.        
        Manuel Aguilar, Ruben's uncle, testified that appellant, Robert, and Ruben were talking on the porch when he drove up. He told them that he was going to park and drove about forty feet down the street. He stated that by the time he parked his truck, Ruben was walking toward the truck, swaying back and forth, with blood all over his chest. Ruben stated, "Look what they do to me, uncle" and laid back on the truck.
        Appellant testified that he went to the Navarro house to make peace and that everything was peaceful until Aguilar drove up. At that point, according to appellant, Ruben made a vulgar remark, ran to his uncle's truck, and returned with something in his hand. When Ruben swung at Robert, appellant stated, Robert stabbed at Ruben in an effort to get loose. Appellant testified further that he and Robert went away because Aguilar was approaching with a gun in his hand. Appellant testified that he never carried a knife and that he did not know if Robert was carrying a knife that evening.
        The police found a bloody, handleless butcher knife in the Navarro yard near where the stabbing occurred. The police went to the Hernandez house and arrested Robert and appellant. Mrs. Hernandez, who was the mother of both Robert and appellant, gave the police oral and written consent to search the house for items possessed in violation of state law or stolen items. The police found three knives in appellant's bedroom. According to the medical examiner, Ruben received five stab wounds, two of which were fatal.
Improper Jury Finding
        Appellant asserts and the State agrees that the trial court's judgment improperly included an affirmative finding that appellant used a deadly weapon. We agree that the judgment should be reformed to delete the jury finding.
        Under article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure, "Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense ..., the trial court shall enter the finding in the judgment of the court." Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 1989). When the defendant is convicted as a party, the trier of fact must make a specific finding that he personally used or exhibited the deadly weapon. Travelstead v. State, 693 S.W.2d 400, 402 (Tex. Crim. App. 1985). This requires that the trial court submit a special issue regarding the defendant's use of a deadly weapon if the jury assesses punishment. Id. No such special issue was submitted in this case.        
        Maribel testified that she did not see anything in appellant's hands. Appellant stated that his brother alone stabbed Ruben. The trial court instructed the jury on the law of parties, and the State argued to the jury that appellant could be convicted even if he only held Ruben while Robert stabbed him. Since the jury was instructed on the law of parties, the jury did not necessarily find that appellant stabbed Ruben with a knife. Absent a specific finding by the jury that appellant used a deadly weapon, the recital to the contrary must be deleted from the trial court's judgment.
The Search
        In his second point of error, appellant complains that the trial court erred in admitting evidence obtained during the search because his arrest was warrantless. We conclude, however, that the search was conducted pursuant to valid consent and overrule the second point of error.
        A search conducted pursuant to consent is an established exception to the requirements of both a warrant and probable cause. Swink v. State, 617 S.W.2d 203, 210 (Tex. Crim. App.), cert. denied, 454 U.S. 1087 (1981). The burden is on the State to show by clear and convincing evidence that the consent was freely and voluntarily given. Id. A third party has authority to consent to a search where he has common authority over and equal use of the premises being searched. Id.; United States v. Matlock, 415 U.S. 164, 167-71 (1974). It is a question of fact whether the consenting party has the right to use and occupy a particular area to justify his permitting officers to search that area. Swink, 617 S.W.2d at 210. The trial judge, as fact finder in a hearing on a motion to suppress, may choose to believe or disbelieve any or all of the witnesses' testimony. Luckett v. State, 586 S.W.2d 524, 527 (Tex. Crim. App. 1979).
        Outside the presence of the jury, the trial judge conducted a hearing for the purpose of determining whether the fruits of the search were admissible. Officer Stallo of the Dallas Police Department testified that family members of the deceased directed him and other police officers to the Hernandez home after the stabbing. When he knocked on the door, Mrs. Hernandez, the mother of Robert and appellant, instructed Robert to admit the police officers. Once inside, the police arrested Robert and appellant.
        When the police explained that her sons were implicated in a murder and asked permission to search the house, Mrs. Hernandez stated that she owned the house and granted oral consent to the search. Mrs. Hernandez also signed a written consent form. When Robert objected to the search, Mrs. Hernandez repeated her consent to the police. During the search police found three knives in appellant's bedroom. Appellant testified that his mother had no property interest in the house and offered evidence of his grandmother's will showing that the house was left in equal shares to appellant, Robert, their uncle, and in trust to a step-brother.
        The trial judge, as fact finder during the hearing, found that Mrs. Hernandez was a permissive occupier of the premises and was in apparent control of the property evidenced by the conduct of the parties. This control, according to the court, was not dispelled by appellant or Robert. The court noted that both the mother and an uncle, who had been introduced to the police officers as the father of appellant and Robert, stated that the house belonged to them. In addition, the court found that the consent was broad enough to include the area searched and the items found.
        We conclude that sufficient evidence was presented in this case to support a finding that Mrs. Hernandez had control over and use of the premises. She was therefore in authority to consent to the warrantless search of the house. Consequently, the trial court did not err in admitting evidence of the knives.
Jury Instruction
        In his third point of error, appellant contends that the trial court erred in failing to instruct the jury that it shall disregard any evidence if it believed, or had a reasonable doubt, that the evidence was obtained in violation of the law. We disagree and overrule appellant's point of error.
        Article 38.23(a) of the Texas Code of Criminal Procedure provides that when the legal evidence raises an issue, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of provisions of this article, then and in such an event, the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 1989).
        The failure to include an article 38.23 instruction is not fundamental error in the absence of a request. Kelly v. State, 669 S.W.2d 720, 726 (Tex. Crim. App.), cert. denied, 469 U.S. 963 (1984). When an issue is not raised before the jury, the defendant is not entitled to an instruction. Jackson v. State, 726 S.W.2d 217, 223 (Tex. App.--Dallas 1987, pet. ref'd).
        Appellant did not request an article 38.23 instruction. In the absence of a timely request, appellant waived any right to have the jury instructed to disregard illegally obtained evidence. The question of consent was tried and ruled upon by the judge in a hearing outside the jury's presence. Thereafter, no evidence in any way impugning the judge's ruling as to the lawfulness of the mother's consent to the search was introduced before the jury. Consequently, appellant is not entitled to an instruction in the absence of a specific request. Jackson, 726 S.W.2d at 223.
        Appellant contends that the instruction is mandatory, citing to Jordan v. State, 562 S.W.2d 472 (Tex. Crim. App. 1978). Appellant's reliance on Jordan, however, is misplaced. In Jordan, defendant requested the article 38.23 instruction at trial. Id. at 474. Additionally, an issue of fact was raised before the jury. Id. In this case, appellant neither requested an instruction nor raised the issue before the jury.
        In the absence of a timely request or an issue of fact before the jury, appellant is not entitled to an article 38.23 instruction. For these reasons, appellant's third point of error is overruled.
Visiting Judge
        Appellant's fourth point of error alleges that the trial court erred in overruling his objection to being tried before a judge other than the duly elected judge of the court. We disagree and overrule appellant's contention.
        When the assignment order in appellant's case was made, article 200a-1, section 4.013 of the Revised Civil Statutes governed objections to assigned judges. Section 4.013 provided:
                OBJECTION TO ASSIGNED JUDGE. (a) When a judge is assigned under this Act the presiding judge shall, if reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge.
 
                (b)        If a party to a civil case files a timely objection to the assignment, the judge is disqualified to hear the case.
 
                (c)        An objection under this section must be filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside. FN:1
        Even assuming this statute can be extended to a criminal case, subsection c implies that objections to the judge assigned must be in writing in order to be filed. If not written or timely filed, the objections are deemed waived, and it is presumed that the judge was properly engaged in the regular discharge of his duties. See Mayfield v. State, 757 S.W.2d 871, 872 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd).
        On August 27, 1987, the presiding judge of the administrative region assigned Judge
William R. Porter to preside over the trial court for one week beginning August 30. The assignment order stated that "it is not reasonable or practicable, nor does time permit the giving notice of this assignment to each attorney representing parties to the cases likely to be heard in whole or part by the assigned judge." The order further stated that a copy of the order would be posted permanently in the clerk's office in lieu of notice.
        On August 31, 1987, appellant's case was called for trial. Appellant objected orally to Judge Porter; however, no written objection was filed. Consequently, appellant waived all objections to Judge Porter's authority. We overrule appellant's fourth point of error.
 
Sufficiency of the Evidence
        Appellant's fifth point of error contends that the evidence is insufficient to support his conviction. We disagree.
        The standard of review for challenges to sufficiency claims is whether, viewed in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Butler v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989).
        Appellant contends that the evidence fails to prove that Ruben was stabbed with a knife since the only eyewitness, Maribel, did not see a weapon. Instead, Maribel testified that she saw something shiny in Robert's hand.
        Maribel, however, did see stabbing motions from both appellant and Robert. The jury also heard testimony from the medical examiner that the fatal injuries were caused by a sharp instrument consistent with the knife found in the yard. Furthermore, appellant testified that Robert stabbed Ruben and speculated that Robert acted in self-defense. Appellant even stated that Robert could have dropped the knife in the grass after the stabbing.
        Viewed in the light most favorable to the conviction, the jury could have reasonably concluded from this evidence that appellant stabbed Ruben or acted as a party to the stabbing. We overrule appellant's fifth point of error because there was evidence from which a rational trier of fact could find appellant guilty of murder.
Failure to Disclose
        In his final point of error, appellant complains that the court erred in permitting the use of a prior statement made by appellant because the State had failed to disclose the statement in compliance with the court's discovery order. We conclude that this contention is without merit and overrule it.
        Although the question of what is discoverable is totally discretionary with the trial court, once the trial court grants a motion for discovery and the prosecution fails to disclose that evidence ordered by the trial court, the undisclosed evidence should not be admitted at trial. Quinones v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980), cert. denied, 449 U.S. 893 (1982); Lindley v. State, 635 S.W.2d 541, 543 (Tex. Crim. App. 1982). Any error urged on appeal, however, is waived by failure to request a postponement or seek a continuance. Lindley, 635 S.W.2d at 544. In addition, the prosecution's failure to comply with a discovery order may constitute harmless error. Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).
        Appellant testified that his brother stabbed Ruben in self-defense. He stated that he thought Ruben was approaching with a knife and the uncle with a gun. On cross-examination, the State sought to impeach appellant with a previously undisclosed statement made by appellant to a police officer denying his presence at the stabbing. This statement was also used by the prosecution in Robert's trial to impeach appellant.
        In a hearing conducted outside the jury's presence, the trial court overruled appellant's objection to the statement. The court concluded that the State erred in not disclosing the statement but also decided that the appellant was trying to use the technical filing of a motion to avoid being charged with a responsibility otherwise placed on him. The court noted that defense counsel had represented Robert at the previous trial and also had access to the transcript of Robert's trial and concluded that appellant could not properly claim surprise at the existence of this statement.
        Once the court overruled appellant's objection to the statement, appellant failed to request a postponement or seek a continuance. Consequently, appellant waived his right to urge this error on appeal. Lindley, 635 S.W.2d at 544.
        Furthermore, we conclude that the admission of appellant's statement was harmless error. Defense counsel was aware of the statement. He was present at Robert's trial when the State used it to impeach appellant, and he had access to the transcript. It should not have surprised appellant or defense counsel that the State would use the same tactics in appellant's trial. Accordingly, we overrule appellant's sixth point of error.
        The recital that appellant used a deadly weapon is ordered to be deleted from the trial court's judgment. Otherwise, the judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
880754F.U05
 
FN:1 The same language now appears without substantial alteration in the Texas Government Code. See Tex. Gov't. Code Ann. § 74.053 (Vernon 1988).
File Date[12-27-89]
File Name[880754F]