Auston v. State

892 S.W.2d 141, 1994 Tex. App. LEXIS 3044, 1994 WL 698654
CourtCourt of Appeals of Texas
DecidedDecember 15, 1994
DocketB14-93-00417-CR
StatusPublished
Cited by27 cases

This text of 892 S.W.2d 141 (Auston v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Auston v. State, 892 S.W.2d 141, 1994 Tex. App. LEXIS 3044, 1994 WL 698654 (Tex. Ct. App. 1994).

Opinion

OPINION

DRAUGHN, Justice.

Appellant, Christopher Bernard Auston, was indicted for attempted murder and unlawfully carrying a weapon on licensed premises. A jury found him guilty on the weapons charge and on the lesser included offense of aggravated assault with a deadly weapon. He was sentenced to a total of 11 years in the Texas Department of Criminal Justice and fined a total of $5,500.00. In six points of error, appellant contends the trial court committed reversible error by: 1) holding testimony of the victim’s alleged statement against penal interest inadmissible; 2) admitting extraneous offenses against appellant; 3) admitting the Kontiki Lounge liquor license; 4) failing to include an instruction on necessity in the jury charge; and 5) failing to include an instruction on provocation and right to arm in the jury charge. We affirm.

The facts are in controversy. However, considering the facts in a light most favorable to the verdict, it appears that both appellant and Charles Hawkins, the victim, were at Sadie Thomas Park when someone began shooting guns into the air. A confrontation between appellant and Hawkins ensued. Later that day, appellant saw Hawkins at the Kontiki Lounge. As Hawkins approached, appellant pulled out a gun and backed up towards the exit while shooting into the floor in front of Hawkins several times. Hawkins continued to approach and as appellant neared the exit, he shot Hawkins in the abdomen and neck. There was conflicting testimony as to whether Hawkins possessed a knife during either or both incidents.

Appellant complains in his first point of error, that the trial court erred in excluding the testimony of a third party, Morris Harrison, regarding Hawkins’ alleged statement about the incidents in the park and in the bar. Harrison testified that Hawkins admitted to him, “I [Hawkins] had a knife, but it was just a misunderstanding.” Appellant argues that the statement being against Hawkins’ penal interest was admissible as an exception to the hearsay rule. Tex. R.CRIM.Eved. 803(24). However, the trial court excluded the statement because appellant failed to demonstrate corroborating circumstances clearly indicating the trustworthiness of the statement as required by Tex. R.CRIM.Evtd. 803(24). Williams v. State, 800 S.W.2d 364, 367 (Tex.App.—Fort Worth 1990, pet. ref'd). A statement against penal interest is adequately corroborated if there is independent evidence of the statement’s trustworthiness and there is evidence of the declarant’s veracity. Cunningham v. State, 877 S.W.2d 310, 312 (Tex.Crim.App.1994). The relevant factors to be considered for adequate corroboration here are the timing of the declaration and its spontaneity, the party to whom the declaration was made, and the existence of independent corroborating facts. Id.

The record reflects that the following circumstances were offered to establish and corroborate the alleged statement against penal interest made by Hawkins to Harrison: 1) The statement was against Hawkin’s penal interest because possession of a knife would violate his parole; 2) Hawkins allegedly made the statement to Harrison, a person he may have considered a friend; and 3) the statement accurately described some general *144 facts as to the location of both incidents, and that Hawkins was shot and hospitalized.

However, other evidence in the record weighs against the trustworthiness of the alleged statement: 1) Harrison had been summoned to testify only the night before; 2) Two subsequent witnesses, Myesia Merchant and Zavondria Shorter, whose testimony was offered by appellant to corroborate the factual content of the alleged statement, improperly remained in courtroom, and heard Harrison’s testimony in violation of the Rule; 8) In addition, the testimony of these two witnesses was in conflict as to the facts between themselves, and conflicted with Harrison’s testimony as well; 4) Harrison also testified that he heard of the incidents in the park and bar prior to his alleged conversation with Hawkins, which could have influenced his rather sudden recollection of the alleged conversation; and 5) appellant is either close friends with or related to Harrison, Shorter, and Merchant.

Under such circumstances where the factors indicating untrustworthiness are at least equal to or greater than those offered to support the trustworthiness of the alleged statement, we cannot, as requested, find that corroborating circumstances clearly indicate trustworthiness. Cunningham, 877 S.W.2d at 314. Accordingly, we find that the trial court did not abuse its discretion in refusing to admit the alleged statement against penal interest. We overrule appellant’s first point of error.

Appellant argues in his second point of error that the trial court erred in admitting extraneous offenses against appellant. Specifically, appellant complains that: 1) state witnesses appeared before the jury in official SCAT Team Narcotics Officers’ uniforms, thereby implying extraneous offenses of appellant; 2) defense witnesses impeached by testimony as to their bad character implies guilt on the part of appellant through his associates; 3) appellant’s character witnesses were impeached with specific instances of prior bad acts; and 4) state witnesses were allowed to testify regarding appellant’s bad character. Normally when multiple legal theories are combined in one ground of error, it is multifarious and presents nothing for appellate review; however, since we were able to distinguish appellant’s contentions from one another, we will discuss them on their merits. Morin v. State, 682 S.W.2d 265, 267 (Tex.Crim.App.1983).

At the punishment phase of the trial, state witnesses appeared in official uniforms and testified as to their specialization in gang and narcotics investigations. Standing alone, such official uniforms do not prejudicially infer that appellant was guilty of unarticulat-ed extraneous offenses. It merely provided some indicia of the qualifications of these witnesses to testify as to appellant’s character pursuant to Tex.R.CRIM.Evid. 405(a). These witnesses also testified as to appellant’s bad reputation for being a peaceful and law abiding citizen. This testimony was clearly admissible pursuant to Tex.R.CRIM. Evid. 405. Even if such uniforms raised a hint of prejudice, it does not remotely approach the level of reversible error

Nor do we agree with appellant that impeachment of his defense witnesses by evidence of their bad character for truthfulness implied guilt of appellant by association. It is a given that a witness’s credibility for truthfulness may be attacked by opinion or reputation testimony pursuant to Tex. R.CRIm.Evid. 608(a). Also, the state did not question defense witnesses about their prior criminal convictions to show appellant’s guilt through his associates. Rather, the state attempted to impeach these defense witnesses in accordance with Tex.R.CRIM.Evid. 609. It is fundamental that witnesses who take the stand under oath must be expected to run the gauntlet of cross-examination as to their credibility.

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Bluebook (online)
892 S.W.2d 141, 1994 Tex. App. LEXIS 3044, 1994 WL 698654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auston-v-state-texapp-1994.