Brown v. State

870 S.W.2d 53, 1994 Tex. Crim. App. LEXIS 13, 1994 WL 18225
CourtCourt of Criminal Appeals of Texas
DecidedJanuary 26, 1994
Docket1087-92
StatusPublished
Cited by93 cases

This text of 870 S.W.2d 53 (Brown v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 870 S.W.2d 53, 1994 Tex. Crim. App. LEXIS 13, 1994 WL 18225 (Tex. 1994).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

A jury convicted Appellant of murder and assessed punishment at sixty-five years confinement. The conviction was affirmed. Brown v. State, 831 S.W.2d 847 (Tex.App.—Dallas 1992). We granted discretionary review to determine whether the trial court abused its discretion by answering a jury note in a manner which Appellant contends impermissibly exceeded the scope of the jury’s inquiry. See Article 36.28, V.A.C.C.P.1

The evidence showed that cousins Latonya and Lizzie Williams were visiting three male friends, “Junior” Ray Mahan, Daryl Oudems, known as “Youngster,” and Ken Covington, at Covington’s apartment. While they were there four or five young men entered the apartment, and while in the course of robbing the occupants forced them to remove their clothing and get into the bathtub. After Covington called one of the assailants by his name, Appellant and at least one of the others started shooting. Lizzie Williams testified that she ducked under the others when the shooting started and was not hit by the gunfire. Covington was shot in the eye, Oudems was shot four times and Latonya Williams was shot eleven times. Covington, Oudems and Williams each survived — Mahan did not.

The testimony in question was that of Latonya Williams. She testified that while she and her cousin were at Covington’s apartment five young men entered the apartment and proceeded to rob those present. She recognized one of the men known to her as “Money Mike.” Covington recognized Appellant and referred to him as “Baby Face.”2

She further summarized the events as follows: as soon as the men entered, one of them started striking Mahan with a pistol. The assailants took approximately seven hundred dollars and some jewelry. The men then instructed Williams and her cousin to take off their clothing and get into the bathtub. After the two women were in the bathroom, Covington, Mahan and Oudems came into the bathroom without their clothes. All five were in the bathtub and the water was running. A few minutes later Covington asked Appellant if he (Appellant) was going to shoot him. Covington said that Appellant could have everything he had, but to just “let him go.” Williams testified Appellant shot Covington in the eye. Money Mike then shot Williams in the arm and she passed out. Neither Williams, nor any other witness, was able to say who shot Mahan.

Money Mike struck a plea bargain with the State and testified at trial. He testified that Appellant was the one who pistol-whipped Mahan. He testified further that Appellant was in the bathroom when the shooting occurred but that he (the witness) was outside the apartment.

During deliberations, the jury sent out a note which stated, “We, the jury, are in disagreement of who Latonya said was in the bathroom.” In response the trial court had the court reporter read back the following testimony:

Q. And did Junior, Youngster and Cov-ington come into the restroom?
A. Yes, sir.
Q. Did they come in with or without clothes?
[55]*55A. Without clothes.
Q. What happened then?
A. A few minutes later Ken was calling Baby Face and asked him was he going to shoot him, he can have everything he got, just let him go.
Q. Where were y’all when he was talking to Baby Face?
A. In the tub.
Q. All five of y’all were in the tub?
A. Yes.
Q. Was the water on or off?
A. On.
Q. Was it a shower or just a regular?
A. It was a regular bathtub.
Q. No shower?
A. No sir.
Q. Did this man, the one you called Baby Face, did he say anything to Covington?
A. He made a smart remark, I couldn’t tell you what he had said at this moment. And the next thing you know he had shot Ken in the head.
Q. Shot Ken in the head. Did he in fact take his eye out?
A. Yes.
Q. After they shot Ken Covington in the head, what happened then? What’s the next thing you recall?
A. I had looked down there at Ken and when I seen his head go down, Money Mike shot me in my arm, I had passed out.
Q. Where was Money Mike when he shot you?
A. He had like one foot out the bathroom and one in the hallway.
Q. So he was halfway in the restroom and halfway out?
A. Yes, sir.
Q. How many boys were in the restroom?
A. Just two.
Q. Two was in there and Money Mike was halfway in and halfway out?
A. Yes.
Q. So three boys were near the restroom?
A. Yes, sir.
Q. Where was the one that you knew as Baby Face, where was he?
A. Standing in front of the bathtub.
Q. Was he near the door too?
A. No, he was standing right in front of the bathtub.

Appellant timely objected to the trial court’s action and advised the judge that the “proposed answer by the Court ... is broader than the question, it constitutes a general re-reading of the witness Latonya William’s [sic] testimony.” Counsel further argued that the trial court’s action “emphasizes portions of her testimony that is highly prejudicial to this defendant which was not inquired about in the question and the answer as proposed by the Court would not only be prejudicial and deprive this defendant due process but would amount to a comment on the evidence by the Court.” In overruling Appellant’s objection, the trial court stated “I believe in the overall flow of this testimony, that’s the only way the Court can respond without dissecting the testimony in some way that creates more problems than it cures.”

When the jury asks that certain disputed testimony be re-read, the trial court must first determine if the jury’s inquiry is proper under Article 36.28, V.A.C.C.P. If it is proper, the trial court must then interpret the communication, decide what sections of the testimony will best answer the inquiry, then limit the re-reading accordingly. See Iness v. State, 606 S.W.2d 306, 314 (Tex.Cr.App.1980). We do not disturb the trial court’s decision unless a clear abuse of discretion and harm is shown. Jones v. State, 706 S.W.2d 664, 668 (Tex.Cr.App.1986).

Appellant complains that the trial court allowed testimony which exceeded the scope of the jury’s question and which was prejudicial to Appellant.

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Cite This Page — Counsel Stack

Bluebook (online)
870 S.W.2d 53, 1994 Tex. Crim. App. LEXIS 13, 1994 WL 18225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-texcrimapp-1994.