Keane v. State

677 S.W.2d 194, 1984 Tex. App. LEXIS 6085
CourtCourt of Appeals of Texas
DecidedAugust 30, 1984
DocketNo. 01-82-0762-CR
StatusPublished
Cited by5 cases

This text of 677 S.W.2d 194 (Keane 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
Keane v. State, 677 S.W.2d 194, 1984 Tex. App. LEXIS 6085 (Tex. Ct. App. 1984).

Opinion

OPINION

BULLOCK, Justice.

Appellant was convicted of murder upon his plea of guilty, and the court sentenced him to 99 years confinement.

We affirm.

Appellant was originally indicted for the offenses of capital murder and murder and elected to plead guilty to the latter charge as the result of a plea bargaining agreement. The terms of that agreement, as appellant made clear when he entered his guilty plea, were that, in exchange for testifying in accordance with a sworn statement against his accomplice at the trial of the latter, appellant would receive a recommendation of imprisonment for 40 years. In the event appellant refused to testify or did not testify in accordance with the sworn statement, the state would allow appellant merely to plead guilty without any recommendation regarding punishment. Both the trial judge and appellant’s attorney questioned appellant extensively, in order to be certain that he understood the [196]*196full import and consequences of this agreement.

Appellant refused to testify at the trial of his accomplice, claiming instead that the accomplice had nothing to do with the murder and then taking the Fifth Amendment.

Following the accomplice’s trial, the trial court in appellant’s case held a punishment hearing and assessed punishment against appellant at 99 years’ confinement. Four days later, the trial court amended the judgment to include an affirmative finding that appellant had used a deadly weapon in the commission of the offense.

Appellant presents four grounds of error:

1) That the trial court erred in failing to obtain the statement of facts covering appellant’s testimony at the trial of his accomplice, before ruling on the question of the violation of the plea bargain agreement (Ground of Error 1);

2) That the prosecution and trial court denied appellant assistance of counsel at the time appellant allegedly breached the plea bargain agreement, in violation of his constitutional rights (Ground of Error 2);

3) That the indictment was fundamentally defective, because it failed to allege a culpable mental state (Ground of Error 3); and

4) That four days after imposing sentence against appellant, the trial court improperly added the affirmative finding that a deadly weapon was used in the commission of the offense. (Ground of Error 4).

Appellant contends that the trial court, during appellant’s punishment hearing, improperly refused to order the transcript of appellant’s testimony at the accomplice’s trial. He claims that this was reversible error because, since the prosecutor failed to testify with a sufficient degree of certainty, the best evidence rule should preclude the use of this testimony to prove the allegation of the breached plea bargain agreement, and therefore, appellant argues no one at his punishment hearing knew with any certainty what happened during appellant’s appearance at his accomplice’s trial.

We disagree. The best evidence rule requires the introduction of a document, as opposed to testimony about the document, in order to prove its contents. It has no bearing on testimony regarding what occurred in a prior judicial proceeding. Taylor v. State, 508 S.W.2d 393, 396 ft. 2 (Tex.Crim.App.1974); Henriksen v. State, 500 S.W.2d 491, 495 (Tex.Crim.App.1973); Overton v. State, 490 S.W.2d 556, 559 (Tex.Crim.App.1973). The instant case does not deal with a question of proof of the disputed contents of a document. Appellant does not dispute the basic accuracy of the prosecutor’s testimony at the punishment hearing but merely argues that a more complete account was available in the transcript of appellant’s testimony at the accomplice’s trial. The question thus presented is whether the trial court abused its discretion in refusing to supplement its record with the additional transcript, and that question in turn focuses on whether the trial court had sufficient facts available from the punishment hearing itself to enable it to make a determination of whether appellant had breached the plea bargain agreement.

The record establishes that, at the time of the punishment hearing, the transcript of the earlier testimony was unavailable to either party, and that there was no indication of how long that lack of availability would continue. The prosecutor’s testimony, despite the numerous underscor-ings added in appellant’s brief, was neither uncertain nor equivocal. It is true that the prosecutor, in testifying, began many sentences with throwaway statements such as, “I remember,” or, “I recall,” but a reading of the prosecutor’s testimony at appellant’s punishment hearing indicates that the prosecutor had no doubts or reservations as to what happened when appellant came to testify against his accomplice. It is also clear that appellant, instead of testifying in accordance with the sworn statement he had earlier given the prosecutor, told his accomplice’s trial judge that he refused to answer [197]*197any questions regarding the murder. This was in direct contravention of his plea bargain agreement. Appellant had ample opportunity, and indeed used this opportunity, to cross-examine the prosecutor, and the record reflects no contradictions, equivocations, or uncertainties revealed by the prosecutor during that cross-examination. There is nothing in the record to indicate any reason why the trial court should not have given credibility to the prosecutor’s rendition of the events of the earlier testimony. Appellant was present during this punishment hearing and could have testified as to those matters without incurring any additional risk. Appellant’s counsel apparently chose not to have appellant testify as to the matters, and thus nothing exists in the record to contradict the prosecutor’s testimony. There is ample evidence to enable us to hold that no abuse of discretion occurred and that the trial judge acted properly in determining that the supplementary transcript, although it may have been helpful in clarifying facts, was unnecessary to ascertain those facts.

Another factor that indicates the basic accuracy of the prosecutor’s testimony is that appellant apparently made no attempt to have the trial court supplement the record under Tex.Code Crim.Proc.Ann. Art. 40.09 subsection 7 (Vernon 1983), by requesting the trial court to include that transcript on appeal.

We overrule appellant’s first ground of error.

In his second ground of error, appellant argues that, because the prosecution proceeded to have him testify at his accomplice’s trial when both the prosecution and the trial court in that case knew that appellant’s attorneys were unavailable at that time, he was denied assistance of counsel, in violation of his constitutional rights. Appellant cites numerous U.S. Supreme Court cases for the proposition that the presence of counsel is a constitutional requirement at a “critical stage” of the criminal justice process against that defendant. This denial, appellant contends, was prejudicial error, because the effect of appellant’s refusal to testify against his accomplice was, in appellant’s view, “59 extra years of imprisonment.”

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Cite This Page — Counsel Stack

Bluebook (online)
677 S.W.2d 194, 1984 Tex. App. LEXIS 6085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keane-v-state-texapp-1984.