Franklin v. State

858 S.W.2d 537, 1993 Tex. App. LEXIS 2092, 1993 WL 274486
Court of Appeals of Texas·Decided June 16, 1993·No. 09-91-055 CR·Published·Cited by 12 cases

Opinions

OPINION

WALKER, Chief Justice.

This is an appeal from a conviction for the felony offense of Murder. After find[538] ing appellant guilty of the offense, the jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. The appeal to this Court raises four points of error, viz:

Point of Error 1: The trial court erred in failing to grant Appellant’s timely motion for new trial, because the trial court had abused its discretion in denying Appellant’s motion for continuance.
Point of Error 2: The evidence was insufficient to sustain a conviction.
Point of Error 3: The trial court erred in receiving prejudicial hearsay testimony, over Appellant’s timely objection, as to what State’s witness “had been told” or “led to believe.”
Point of Error 4: The trial court erred in holding the evidence sufficient to sustain the conviction, when the State’s proof failed to sustain specific descriptive aver-ments made in the indictment, namely, that the Appellant did intentionally and knowingly cause the death of Mary Franklin by stabbing her with a knife.

In addressing appellant’s first point of error, a description of pretrial circumstances will aid in our discussion. The record before us reflects that appellant’s trial was set to begin on January 9, 1991. The transcript reflects that on January 4, 1991, appellant filed a “MOTION FOR DISCOVERY AND INSPECTION OF EVIDENCE.” 1 The transcript further reflects that on January 8,1991, at 4:15 p.m., appellant filed a “MOTION FOR CONTINUANCE.” The pertinent portion of this motion provides the following:

The State made discovery available to the defense on January 5, 1991. At this time the name of an exculpatory witness was given to defense, one Mary Washington, who had informed the State she knew the defendant did not commit the alleged offense but had not revealed her sources. She also stated she knew who had committed the murders but did not know their complete names. Attempts have been made to locate the witness to no avail. It is imperative that this witness be located and her anticipated information be investigated.

A volume of the statement of facts reflects that the trial court afforded appellant a hearing on his motion for continuance prior to the start of the trial on January 9, 1991. The pertinent part of the proceeding is set out as follows:

THE COURT: Cause No. 56,737, State of Texas vs. Charles Franklin.
Let the record reflect the defendant is present along with his attorney, Mr. De-Lee.
The State is represented by Mr. Rodriguez.
Defense counsel has filed on January 8 at 4:00 (sic) P.M. motion for a continuance.
Would you like to address that motion orally or add anything to it?
MR. DELEE: Yes, Your Honor, if I may.
The Court commenting on the late date of filing, we have been attempting to locate the witness outlined in the motion, a Mary Washington. It became obvious we weren’t going to be able to, certainly not within time to check out her testimony, to see if in fact the people that she alleged were the perpetrators of this crime, and also that the defendant, by virtue of that, could not be guilty. That is the purpose of the late date, this information was not given to the defense until the 5th of January, on a Saturday. When Mr. Rodriguez and I were going through the State’s evidence and discovery, up to that time, we didn’t know of the existence of Mary Washington and her purported testimony. We feel, and it is embodied in the motion that if what she says is true, that she knows that someone else committed this crime, then that should be investigated, at least, to determine that she is not telling the truth or to solve the crime for the benefit of [539] the Court and the defendant and the ends of justice.
THE COURT: State’s response?
MR. RODRIGUEZ: Your Honor, other than the fact that the information, confirming Mr. DeLee, the information was in fact provided on the early afternoon of Saturday, January 5th. I bring to the Court’s attention that the witness in question, Mary Washington, was debriefed by a Port Arthur police officer in a hospital emergency room at the time of the statement that she made, alleging that she had other knowledge, that since that period of time she has made no effort to contact the State or the Port Arthur police (sic) Department to give any further information. She provided an address, which is the best address we have, and even that, Your Honor, I must admit, is more than a year old because that is how long ago she gave the information. Like also to bring to the Court’s attention, if there will be a proffer at some point in time as to what she might have testified to, I would request that that proffer also include the fact that the officer who talked to her deemed her to be highly intoxicated at the time she made those statements. That is all.
THE COURT: Defense motion for a continuance is denied.
Let the record reflect that the Court’s file also reflects that all the subpoenas for the witnesses by defense were also issued and filed with the Court on January 8 of 1991.

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

Franklin v. State, 858 S.W.2d 537, 1993 Tex. App. LEXIS 2092, 1993 WL 274486 (Tex. Ct. App. 1993).

858 S.W.2d 537 (Franklin v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Ruben Muniz v. State
Court of Appeals of Texas, 2009
Patrick Anthony Russo v. State
Court of Appeals of Texas, 2007
Russo v. State
228 S.W.3d 779 (Court of Appeals of Texas, 2007)
Willie Reynolds v. State
Court of Appeals of Texas, 2000
Valdomero Herrera Coy v. State
Court of Appeals of Texas, 1998
Greenwood v. State
948 S.W.2d 542 (Court of Appeals of Texas, 1997)
Deaton v. State
948 S.W.2d 371 (Court of Appeals of Texas, 1997)
Beauchamp v. State
870 S.W.2d 649 (Court of Appeals of Texas, 1994)
Franklin v. State
858 S.W.2d 537 (Court of Appeals of Texas, 1993)