Eric Cantrell Holmes v. The State of Texas--Appeal from 262nd District Court of Harris County

Eric Cantrell Holmes vv. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-97-143-CR

 

ERIC CANTRELL HOLMES,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 262nd District Court

Harris County, Texas

Trial Court # 732940

O P I N I O N

Appellant Holmes appeals his conviction for murder, enhanced by two prior convictions, for which he was sentenced to life in the Texas Department Criminal Justice Institutional Division.

Eric Palmer was killed by a bullet intended for another. Appellant and Louis Woodard met in EZ Pawn. Woodard was apparently looking too closely at Appellant's girlfriend and the girlfriend took offense. She said so to Appellant and the two men "looked at each other crazy." Woodard then left without further incident.

One hour later Woodard was walking down the street when Appellant pulled up in a white Mercedes. Woodard saw Appellant leaning out the driver's side window with a gun in his hand. Woodard dived out of the way and told Eric Palmer, who was walking near him, to do the same. Palmer turned around to see what was going on. This hesitation cost him his life. Palmer was shot in the chest and died on the way to the hospital.

Wrecker driver, William Long, witnessed the murder. He was driving down the street when he saw the driver of the white Mercedes reach out the window and start shooting. At first, Long thought the man was shooting at him and he drove his wrecker up on the curb. Long saw Palmer fall to the ground and the Mercedes speed away.

Appellant was arrested on a warrant issued on the information of Woodard. The gun found in Appellant's car was the gun which fired the bullets which killed Palmer.

The jury convicted Appellant of murdering Palmer and found the alleged felony enhancements "true." Appellant testified that he had six prior felony convictions. The jury assessed Appellant life in prison. Appellant appeals on six points of error.

Point 1: "The court erred by limiting the defense's cross examination of the State's chief eyewitness Louis Woodard."

Woodard made the affidavit upon which the arrest warrant was based; he identified Appellant from a photo spread; he testified about the confrontation with Appellant's girlfriend in the EZ Pawn; and he identified Appellant as the shooter from the white Mercedes.

When the State called Woodard, it established from him that he had prior convictions and that the prosecutors had met with him several times to talk. Defense counsel conducted a lengthy cross examination and established (1) Woodard could not purchase a gun because he was a convicted felon; (2) Woodard had been convicted of robbery, attempted murder, and delivery of cocaine; (3) he was smoking marihuana at the time of the shooting; (4) that Woodard's arrest for delivery of cocaine had occurred on the same street as the shooting.

On redirect, the State established from Woodard that he had asked for and received a promise from the prosecutors that he would be able to serve his 15-month sentence in the delivery of cocaine case in the county jail rather than state jail.

Appellant's counsel then took Woodard on re-cross. It is on this re-cross that Appellant claims his cross examination was limited. Specifically, he complains of the following:

Q: If you saw what happened out there and came here to tell the truth, why is it necessary to talk about the time you got? What's one got to do with the other?

STATE: I object.

COURT: Sustained.

Q: You came down here and talked to them. Was I in there with y'all?

A: No.

Q: You didn't send for me, did you?

A: No.

Q: Y'all had a private conversation about this case?

STATE: Objection, judge. That is not relevant.

COURT: Sustained.

Q: You feel like you you're going to get a direct benefit from testifying here today, don't you?

A: I can't get no benefit.

 

Appellant contends that his line of questioning was foreclosed, thereby limiting his right of cross examination.

The parameters of cross examination for the showing of a witness bias rests within the sound discretion of the trial court. Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993) cert. denied, 114 S.Ct.. 1871 (1994); Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996).

In this case Appellant was allowed full latitude to establish Woodard's criminal record. The jury heard all about Woodard's most recent conviction and his understanding with the prosecution that he would be allowed to spend that time in county jail rather than state jail.

While Appellant complains that his right of cross examination was cut off by the judge, there is no statement to this effect in the record, nor is there evidence of any question Appellant was subsequently prevented from asking.

For a complaint about the exclusion of evidence to be considered by an appellate court, the record must show what the excluded evidence would have been. Fuentes v. State, 832 S.W.2d 635, 638 (Tex. App. Houston [14th Dist.] 1992, pet ref'd). Absent such a showing, nothing is presented for review. Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 106 S. Ct. 1990 (1985); Romo v. State, 568 S.W.2d 298 (Tex. Crim. App. 1972).

Point 1 is overruled.

Point 2: "Appellant's right to due process was violated by the prosecution's use of perjured testimony."

Arlethea Broussard, Appellant's common-law wife, testified that she and Appellant robbed a GTE store; that she was the getaway driver, and Appellant went inside and committed the robbery. During the robbery, Appellant shot the store owner and others. Broussard received seven years for this offense which she was serving at the time of trial.

After trial Broussard filed a statement claiming her testimony was false and that neither she nor Appellant committed the GTE store robbery. Her post-trial statement formed the basis for Appellant's motion for new trial, which was overruled by operation of law. Nonetheless Appellant presumes that Broussard's statement attached to his motion for new trial was true and that her trial testimony was false.

The State may not obtain a conviction through the use of perjured testimony. Napue v. Illinois, 79 S. Ct. 1173 (1959). However, Appellant has the burden of showing that the testimony of Broussard was in fact perjured. Losada v. State, 721 S.W.2d 305 (Tex. Crim. App. 1986); Luck v. State, 588 S.W.2d 371 (Tex. Crim. App. 1979). Appellant has not shown that Broussard perjured herself at trial. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983). To the contrary, it is more likely that her post-trial statement was false and intended to try to get Appellant a new trial.

Point 2 is overruled.

Point 3: "The court erred in failing to grant Appellant a new trial based upon newly discovered evidence."

The granting of a motion for new trial lies within the discretion of the trial court. We do not substitute our judgment for that of the trial court but rather decide whether the trial court's decision was arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Motions for new trial on grounds of newly discovered evidence are not favored and are viewed with great caution. And this is especially true where a witness at trial recants his testimony. Not every recanting requires a new trial for a defendant for whose benefit it is produced. Drew v. State, 743 S.W.2d 207, 228 (Tex. Crim. App. 1987).

Appellant filed two motions for new trial. The first was pro se and claimed newly discovered evidence in the form of letters from Damien Buchanan wherein it was contended Buchanan admitted committing the offense. The letters do not admit committing the offense, but merely indicate animosity between Buchanan and Appellant and state Buchanan's pleasure at Appellant being sent to prison. Moreover, the letter was signed "Lo Pro," and there is no showing that "Lo Pro" is Buchanan.

The second motion for new trial was filed by defense counsel and is based on the statement of Broussard that she had lied in her testimony at trial as to Appellant having robbed the GTE store. This evidence was submitted untimely, as Appellant concedes. Moreover, her statement that she lied at trial seems unlikely since her testimony at trial was consistent with her prior testimony to the police, and she herself was convicted for the GTE store robbery which she admitted committing with Appellant.

The trial judge did not abuse his discretion in overruling the two new motions for new trial.

Point 3 is overruled.

Point 4: "Appellant was denied effective assistance of counsel by counsel's failure to adequately investigate the testimony of Arlethea Broussard prior to trial."

Specifically, Appellant claims his trial counsel should have questioned Broussard about the voluntariness of her testimony and moved to keep it out under Tex. R. Crim. Evid. 504.

Strickland v. Washington, 466 U.S. 668 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) set the standards for analyzing a claim of ineffective assistance of counsel. These cases require a showing that counsel's performance was so deficient by the norm of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process, that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts or omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980).

The burden of proving ineffective assistance of counsel is on the appellant and must be proven by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 53 (Tex. Crim. App. 1985).

Tex. R. Crim. Evid. 504 does not preclude Broussard testifying about her participation with Appellant in the commission of a crime.

Appellant has not shown that counsel was ineffective.

Point 4 is overruled.

Point 5: "Appellant received ineffective assistance of counsel by counsel's failure to request a charge on the defense of self defense."

The evidence in this case indicated that Appellant shot Palmer by mistake in a drive-by shooting. There was no evidence that Appellant fired in self defense of himself or any other witness. In fact Appellant testified that he was not the driver of the car and that he did not fire a weapon. Under the record, Appellant was not entitled to a charge on self defense. Defense counsel is not ineffective for failing to request a charge to which he would not be entitled.

Point 5 is overruled.

Point 6: "The court erred in failing to charge the jury on the accomplice witness rule as it applied to Arlethea Broussard's testimony concerning the extraneous offense.

Broussard testified on rebuttal in the guilt-innocence phase that Appellant committed the extraneous offense of robbery of the GTE store. She testified she was an accomplice, the driver of the getaway car, and that she was serving a seven-year sentence for her part in the aggravated robbery.

When the court asked if there were objections to the charge, Appellant requested the accomplice-witness instruction be included in the charge. The court stated, overruled.

Appellant testified to having been convicted of six felonies; and the bullets used in the GTE holdup were proven to have been fired from a gun found in Appellant s car.

The court charged the jury on guilt-innocence that defendant was presumed innocent and no person may be convicted of an offense unless each element of the offense is proven beyond a reasonable doubt . . . that proof beyond a reasonable doubt must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your affairs.

Assuming, without deciding, that the trial court should have given the jury the accomplice witness instruction in the charge in connection with Broussard s testimony that she and Appellant robbed the GTE store, we hold that failure to give such charge did not contribute to Appellant s conviction or punishment. Tex. R. Court 44.2b.

Point 6 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 April 16, 1998

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