Franklin v. State

733 S.W.2d 537, 1985 Tex. App. LEXIS 12194
CourtCourt of Appeals of Texas
DecidedOctober 17, 1985
DocketNo. 12-84-0088-CR
StatusPublished
Cited by3 cases

This text of 733 S.W.2d 537 (Franklin 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
Franklin v. State, 733 S.W.2d 537, 1985 Tex. App. LEXIS 12194 (Tex. Ct. App. 1985).

Opinion

BILL BASS, Justice.

The jury convicted appellant of unauthorized use of a vehicle but acquitted him of the charge that he failed to remain at the scene of the accident and render aid. His punishment (enhanced under TEX.PENAL CODE ANN. § 12.42[d] [Vernon Supp. 1985]) was assessed by the court at thirty years. Appellant contends that the court erred when it: (1) enforced “the rule” by refusing to allow two alibi witnesses to testify for the defense;1 (2) entered judgment against him based on inconsistent jury findings; and (3) entered judgment against him when the evidence was insufficient to establish his guilt. We affirm.

On September 30, 1983, Joseph Ford left work at the State Fair grounds in Dallas after locking his 1977 Ford pickup truck inside a building on the grounds. When he returned to work the next morning, he discovered that his truck was missing. He immediately notified the police and gave them a description of the truck and its license number. Shortly thereafter, at approximately 10:30 a.m., two police officers saw a truck which matched the license number and description of the missing truck and they began following it in their patrol car. After the truck entered the parking lot of the South Park apartment complex, the officers left their car and started to approach the truck. However, the driver quickly put the truck in reverse and attempted to flee, colliding with another police car that had just arrived at the scene. The stolen truck careened from off of the police vehicle into a trash dumpster, driving the dumpster over twenty feet into a parked Honda Civic. A utility pole arrested the further progress of the Honda, the dumpster and the stolen truck. The dumpster also struck a bystander in its path, severely fracturing her leg. The record does not show that the driver of the truck knew that a bystander was hit or injured. After the collision, the driver of the truck jumped from the truck and ran toward the apartment complex where the officers lost sight of him. The officers arrested appellant minutes later in one of the apartments in the complex.

At the trial, the court placed the witnesses under the rule at appellant’s request. During the presentation of the State’s case, three police officers positively identified appellant as the driver of the pickup. After the State rested, appellant called his brother, Christopher Franklin, to the stand, but the State objected to his testimony on the ground that he had been in the courtroom in violation of the rule during the presentation of the State’s case. Under questioning by the court, Franklin admitted that he had heard portions of the police officer’s testimony. Appellant’s counsel told the court that he was unaware that Franklin and another witness, William Johnson, had been in the courtroom in violation of the rule, and he asked the court to allow the witnesses to testify because their testimony would be material to appellant’s defense. Out of the jury’s presence, he also told the court in some detail what he expected to prove through Franklin’s and Johnson’s testimony. Without reciting the details, their testimony would have corroborated appellant’s alibi defense between approximately 7:30 a.m. and 10:30 a.m., the time of his arrest. The State pointed out that the two witnesses had been in the courtroom and had heard the officers testify concerning the identification of appellant and the time period within which the offenses had occurred. The court; refused to allow Franklin and Johnson to testify.

By his first ground, appellant contends that the court violated his constitutional right to the compulsory attendance of witnesses when it refused to allow [539]*539Franklin and Washington to testify.2 He also argues that the court abused its discretion when it excluded their testimony. Appellant supports his contentions by citing Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and Braswell v. Wainwright, 463 F.2d 1148 (5th Circuit 1972). This ground cannot be sustained.

The right of an accused under the Sixth Amendment to offer witnesses on his behalf and to compel their attendance, if necessary, is applicable to the states through the Fourteenth Amendment. Washington, 87 S.Ct. at 1927. However, the right is not absolute. Weaver v. State, 657 S.W.2d 148, 150 (Tex.Cr.App.1983). In Washington, the United States Supreme Court held that Washington’s right to compulsory process under the Sixth Amendment had been violated because the State had “arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that [the witness] had personally observed, and whose testimony would have been relevant and material to [Washington’s] defense.”3 Washington, 87 S.Ct. at 1925. However, in Braswell, the trial court had refused to allow a witness to testify because he had remained in the courtroom in violation of the rule during the presentation of the State’s case. The excluded witness, who was the only person who could have corroborated Braswell’s claim that he had acted in self-defense, had innocently violated the rule without the knowledge of Braswell or his counsel. Based on the “particular and extraordinary circumstances presented,” including the “crucial” nature of the excluded testimony, the Fifth Circuit Court of Appeals held that the trial court had used the rule to violate Braswell’s right to compulsory process under the Sixth Amendment. Braswell, 463 F.2d at 1157.

Appellant contends that Braswell is analogous and therefore dispositive of the first ground. The cases are somewhat similar. In both Braswell and the instant case, the violations of the rule were unintended and without the “consent, connivance, procurement or knowledge of the defendant or his counsel.” However, in Braswell, the excluded witness was the only person who could have corroborated Braswell’s claim of self-defense. Id. at 1155. Therefore, the court properly characterized the testimony of the excluded witness as “crucial” to Braswell’s defense. Id. at 1156. The excluded testimony was so crucial, in fact, the court held that the trial court had used the rule to deny Bras-well’s constitutional right to present a defense. Id. at 1157. In contrast, in addition to his mother’s testimony, appellant’s defense was supported by Kevin Gillespie, who testified that he ran to his balcony in the apartment complex after hearing a crash and saw police officers chasing a man who ran from the pickup involved in the collision. Gillespie, who had known appellant for many years, testified that he was sure that the appellant was not the man being chased by the officers. Appellant’s own testimony suggests other witnesses he might have called to corroborate his alibi. However, when the court excluded Franklin and Johnson from testifying, appellant neither alleged nor offered any proof that he was unable to get other witnesses. Absent a showing that the rule’s enforcement deprived the appellant of the only practical means of making his defense, this court will not characterize the excluded testimony as crucial.

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Bluebook (online)
733 S.W.2d 537, 1985 Tex. App. LEXIS 12194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-state-texapp-1985.