Cook v. State

629 S.W.2d 233, 1982 Tex. App. LEXIS 3997
Court of Appeals of Texas·Decided February 24, 1982·No. No. 2-81-077-CR·Published·Cited by 3 cases

Opinion

[234] OPINION

JORDAN, Justice.

Appellant was charged with aggravated robbery and because of two former final robbery convictions was also indicted as an habitual criminal. He pled not guilty to the aggravated robbery indictment and not true to the recidivist allegations. The jury convicted appellant on the aggravated robbery count and found that both allegations of prior convictions of robbery were true. Appellant was sentenced to life imprisonment in the Texas Department of Corrections.

We affirm.

On the evening of March 24, 1979, at about 10:00 p. m., appellant and a male companion entered the convenience store where one Fiyaz Choudhary was working, asking for cigarettes and mints. Appellant then pulled a pistol on Choudhary and ordered him to lie on the floor, while the accomplice took money from the store’s cash register and from some envelopes located either under the counter or on the floor of the convenience store. The two then forced Choudhary at gunpoint to accompany them in their car. Choudhary was forced to lie on the floor of the car while appellant and his accomplice drove to a heavily wooded area. There they relieved Choudhary of his money and watch and shot him twice in the back, leaving him for dead.

Choudhary, to the regret and chagrin of appellant and his companion, found his way to a nearby house and was removed to a hospital where he underwent surgery, including the removal of his right kidney. According to the surgeon who operated on him, Choudhary suffered gunshot wounds to the right back resulting in injuries to the right lung, two holes in the diaphragm, a hole in the liver and a hole in the right kidney. He was hospitalized for 19 days.

The vehicle used in the robbery and kidnapping was discovered on the parking lot of the Swiftway convenience store on Camp Bowie Boulevard in Fort Worth later in the evening of March 24, 1979 as a result of an investigation of another aggravated robbery committed by appellant and the same companion, Billy Joe Cofer. This other robbery will be discussed in greater detail under grounds of error nos. 5 and 6. In the car at the time it was found were two envelopes and several rolls of coins identified by Choudhary at the trial as items taken from him during the robbery of his store.

There are six grounds of error urged in appellant’s brief.

The first ground of error alleges error on the part of the trial court in granting the State’s motion to shuffle the jury panel during voir dire. Under this ground, appellant says that the shuffling of the jury panel was permitted subsequent to the beginning of the voir dire examination. This allegation is not correct. At the beginning of the voir dire, before any questions were asked of the panel either by counsel or by the court, the court, after hearing evidence on appellant’s motion to deny the State’s requested shuffle, granted the motion to shuffle and did cause the panel to be shuffled. This was done after preliminary remarks were delivered by the trial judge to the jury panel, and after he had excused eight different members of the jury panel from service in that case, without objection of appellant. The excuses granted by the court were all necessary and legitimate. After this was done ten more panel members were called and the cards were then shuffled.

There was no error in the trial court’s allowing the jury shuffle. The shuffle of the jury panel is an absolute right under V.A.C.C.P., article 35.11. It has been held that the demand is timely if made before the voir dire examination begins. Alexander v. State, 523 S.W.2d 720, (Tex.Cr.App.1975); Griffin v. State, 481 S.W.2d 838 (Tex.Cr.App.1972); Roberson v. State, 582 S.W.2d 422 (Tex.Cr.App.1979).

In his second and third grounds of error appellant complains of the trial court permitting Fiyaz Choudhary, the victim of this aggravated robbery and shooting, to [235] display his wounds and surgical scars to the jury. Although at trial appellant made only a broad, general objection to display of the scars, in his brief he argues that the display of the scars was prejudicial and inflammatory. His objection at trial was insufficient to present error. However, regardless of that, there is no error shown in the court allowing Choudhary to exhibit his scars. The wounds from the shots were certainly relevant to show serious bodily injury and the fact that the victim had been placed in fear of imminent bodily injury or death. Lydia v. State, 486 S.W.2d 791 (Tex.Cr.App.1972); Salazar v. State, 397 S.W.2d 220 (Tex.Cr.App.1965).

Also, because the record contains no descriptive narrative or visual exhibit of what the jury saw when Fiyaz Choudhary exhibited his knife and surgical scars in their presence, we cannot rule on the inflammatory or prejudicial nature of the evidence. The record neither supports nor refutes the contention that the exhibition was so shocking or gruesome that its prejudicial effect outweighs its probative value. No error is shown and these grounds of error are overruled.

Appellant next, in his fourth ground of error, says that reversible error occurred when the prosecutor asked a witness if appellant’s accomplice had implicated anyone else in his judicial confession. The clerk of the court testified that Billy Joe Cofer had been indicted for the aggravated robbery of Fiyaz Choudhary on March 24, 1979 and that he had pled guilty and been sentenced to 35 years confinement. All this was without objection. After the clerk testified that Cofer had admitted his guilt on the stand, the prosecutor asked, “Do you recall whether or not he implicated anyone else?” A defense objection was sustained, and the jury was instructed “not to consider the last question for any purpose in this case as any evidence or for any purpose in this case.”

No error is shown. The question was not answered, and the appellant’s name was in no way mentioned in this question. Even if the question had been answered in the affirmative, the testimony would have revealed nothing more than that Cofer had implicated someone but not necessarily the appellant. Griffin v. State, 486 S.W.2d 948 (Tex.Cr.App.1972). Moreover, the court’s instruction to the jury not to consider the question for any purpose cured any error that may have been present in the asking of the question. Carey v. State, 537 S.W.2d 757 (Tex.Cr.App.1976).

In addition, the questions were asked by the State only after appellant, on direct examination, had shown by the clerk that Cofer had been indicted “for the very same offense” as appellant. The door was opened and the State had the right to go further into the facts. V.A.C.C.P., art. 38.24; Rodriguez v. State, 597 S.W.2d 917, (Tex.Cr.App.1980) (p. 13, appellee’s brief).

Appellant’s fourth ground of error is overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Cook v. State, 629 S.W.2d 233, 1982 Tex. App. LEXIS 3997 (Tex. Ct. App. 1982).

629 S.W.2d 233 (Cook v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Jones v. State
833 S.W.2d 146 (Court of Criminal Appeals of Texas, 1992)
State v. Abel
664 P.2d 772 (Idaho Supreme Court, 1983)