King v. State

746 S.W.2d 515, 1988 Tex. App. LEXIS 644, 1988 WL 25299

• Court: Court of Appeals of Texas
• Decided: February 9, 1988
• Docket: 05-87-00064-CR
• Status: Published

Opinions

ROWE, Justice.

Herbert Kay King appeals from a conviction of murder for which the jury assessed punishment at confinement for life in the Texas Department of Corrections and a fine of $10,000. In his original brief appellant asserts four evidentiary points of error. These points concern violation of discovery orders, warrantless searches, a double search, and warrants supported by defective affidavits. In a supplemental brief, appellant asserts fundamental error in the court’s charge respecting instructions on parole. For reasons given below, we overrule all points of error and affirm the trial court’s judgment.

A detailed review of the evidence is not required since no sufficiency points have been asserted. Suffice it to say that in a two-week trial involving well over 150 exhibits, the evidence presented supports the jury verdict that appellant committed a brutal murder involving suffocation and the use of incendiary devices. The evidence further supports a conclusion that appellant planned the attack and thereafter showed little remorse.

Appellant’s first ground of error asserts that the trial court erred by admitting into evidence State’s Exhibit No. 134 over the objection of the appellant that the item had not been presented to appellant’s counsel in violation of the court’s discovery order. The exhibit objected to was a suicide/confession note written by appellant to his wife. The note did not admit to the murder itself but contained language admitting theft and contemplating murder. The trial court made a pretrial order granting broad discovery to the appellant. The order in paragraph six allowed appellant to inspect all evidence seized under warrants at appellant’s residence or place of business. The note does not fall within paragraph six since the note was not seized under a warrant but was discovered by a third party and subsequently delivered to federal agents.

Paragraph eight of the discovery order required the prosecution to allow inspection of all tangible evidence expected to be admitted at trial. Although the note was entered by the State during rebuttal testimony, the record is clear that the State at all times intended to enter this evidence at trial. Therefore, the discovery order was clearly violated. However, mere violation of discovery orders does not mandate reversal. Keegan v. State, 681 S.W.2d 806, 810 (Tex.App.—Houston [14th Dist.] 1984, pet. ref’d).

A defendant in a criminal case does not have a general right to discovery of evidence in the State’s possession. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.) (en banc), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980). Appellant’s right to discovery is limited to exculpatory or mitigating evidence. Dickens v. Court of Appeals for the Second Supreme Judicial District of Texas, 727 S.W.2d 542, 551 (Tex.Crim.App.1987). Beyond this, discovery is left to the discretion of the trial court under article 39.14, TEX. CODE CRIM.PROC.ANN. (Vernon 1979). Mosely v. State, 627 S.W.2d 770, 774 (Tex.App.—Houston [1st Dist.] 1981, no pet.). The note in question was not exculpatory or mitigating, and thus appellant had no right to its discovery. However, the trial court acted within its discretion in granting the broad discovery order.

Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence. Hollowell v. State, 571 S.W.2d 179, 180 (Tex.Crim.App.1978). However, when the evidence is admitted, the standard for review is whether the trial court abused its discretion. See Hightower v. State, 629 S.W.2d 920, 925 (Tex.Crim.App.1981). In reviewing the trial court’s discretion, bad faith on the part of the State and the reasonable anticipations of the defendant are considered. Id. The evidence in the present case shows probable bad faith on the part of the State in withholding the evidence. However, other items found along with the note were made available to the appellant; and, therefore, it is reasonable to conclude that appellant had knowledge that the note was also found. Appellant is imputed with the knowledge of where he stored things. The fact that appellant did not inform his counsel of what he put in a box known to be in the custody of law enforcement officers is not relevant. Considering appellant’s reasonable expectation, we cannot say that the trial court abused its discretion in allowing the note to be entered into evidence.

Furthermore, if bad faith on the part of the State is alone sufficient to establish abuse of discretion, the error nonetheless may be harmless. Hernandez v. State, 636 S.W.2d 611, 613 (Tex.App.—San Antonio 1982, no pet.). To be harmful, the evidence withheld in violation of the trial court’s order must be such as would have affected the outcome of the trial in his favor. Macias v. State, 704 S.W.2d 484, 488 (Tex.App.— Houston [14th Dist.] 1986, no pet.).

The elements which would establish a potential effect on the trial outcome are: (1) suppression of evidence after a request by the defense; (2) the evidence was favorable to the defense; (3) the evidence was material. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Ransonette v. State, 550 S.W.2d 36 (Tex.Crim.App.1976).

Id. The note suppressed by the State was neither material¹ nor favorable to appellant’s defense. After reviewing the entire record, we find that the admission of the note into evidence, without its first being made available to appellant for inspection, did not have the effect of depriving appellant of an opportunity to raise a doubt, not otherwise existing, as to his guilt. See Whitchurch v. State, 660 S.W.2d 422, 425 (Tex.Crim.App.1983) (en banc). For these reasons, we overrule appellant’s first point of error.

Appellant’s second point of error asserts that the trial court erred in denying appellant’s motion to suppress evidence seized without a search warrant in violation of Texas Code of Criminal Procedure Annotated, article 38.23 (Vernon 1979), and in violation of both state and federal Constitutions. The record reflects that the evidence complained of, a portion of which was the subject of appellant’s first point of error, was discovered by appellant’s father-in-law who was cleaning out a trailer owned by appellant, under the instructions of appellant’s wife, and while the trailer was located on the father-in-law’s property. A second piece of evidence, a flare similar to that used during the crime, was discovered by the father-in-law while helping to move a boat and trailer on appellant’s property. On both occasions, the father-in-law turned the evidence over to the federal investigators.

It is axiomatic that constitutional and statutory protections against warrant-less searches only apply to searches conducted under governmental authority. Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410, 417 (1980); Kohler v. State, 713 S.W.2d 141, 143 (Tex.App.—Corpus Christi 1986, no pet.). The government cannot shield itself, however, behind a private citizen who is acting as an agent of the State. Walters v. State, 680 S.W.2d 60, 62 (Tex.App.—Amarillo 1984, no pet.). Thus the question in this case is whether the father-in-law was acting as an agent for the State when he discovered the evidence admitted at trial. The United States Fifth Circuit Court of Appeals in United States v. Bazan, 807 F.2d 1200 (5th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987), established a framework for making the agency determination. The court held:

[W]here the government has offered no form of compensation to an informant, did not initiate the idea that he would conduct a search, and lacked specific knowledge that the informant intended a search, the informant does not act as a government agent when he enters another’s property.

Id., at 1204. Similarly, appellant’s father-in-law was not compensated by the government, the government did not compel the search, and the search was conducted without the government’s knowledge. We therefore hold that appellant’s father-in-law was not an agent of the State when he discovered evidence later admitted at trial. The mere fact that a private citizen conducts a warrantless search and then, in sympathy for law enforcement, turns evidence over to the State does not make that person an agent of the State. Appellant’s second point of error is overruled.

Next, appellant asserts that the trial court erred by admitting into evidence items that were illegally obtained as a result of a second search on the same property. Appellant contends that the Federal Alcohol, Tobacco and Firearms agents’ search of appellant’s business address for a second time violated article 18.01(d), TEX. CODE CRIM.PROC.ANN. (Vernon 1977). That provision forbids the issuance of subsequent search warrants pursuant to Subdivision (10) of article 18.02 of the Code for the purpose of searching the same person, place, or thing subjected to a prior search under the same subdivision.

Appellant’s contention is quickly disposed of when it is recognized that federal officials conducted both searches under federal warrants. The Federal Rules of Criminal Procedure do not contain a similar provision forbidding subsequent searches. See FED.CRIM.PROC. 41 (West Supp. 1987). The federally authorized searches were not governed by Texas law. Therefore, the federal agents conducting the search did not violate article 18.01(d) of the Texas Code of Criminal Procedure.

A potential problem does arise when evidence so obtained by federal agents is later introduced into evidence in a state court proceeding. We have found no cases in Texas dealing with this issue but find federal authority to be helpful. The court in Park v. El Paso Board of Realtors, 764 F.2d 1053 (5th Cir.1985), held that, where evidence was obtained by federal officers in violation of a local telephone tariff, the evidence was admissible in federal court at the discretion of the trial court since the State interest in deterring covert taping of telephone conversations did not outweigh the benefit of providing the fact finder with all relevant testimony. Id., at 1066. Park recognizes the distinction between federal and state search rules and the notion that a valid search occurs when federal officers comply with federal rules although the search may violate state rules. In addition, the United States Supreme Court in United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), held that the judicially created exclusionary rule should not he used to exclude evidence, lawfully seized in one sovereign jurisdiction, from admission in a proceeding in a different sovereign jurisdiction. Id., 428 U.S. at 469-60, 96 S.Ct. at 3034-35, 49 L.Ed.2d at 1064. This decision was founded on the notion that the exclusionary rule was established to deter illegal searches, but when the search is lawfully conducted, no deterrence is gained by excluding the evidence in another sovereign’s jurisdiction. Id.

In this case the federal searches made pursuant to federal warrants were lawful when conducted, and the evidence seized would have been readily admissible in federal courts. This Court concludes that no deterrent effect is gained by excluding from a state court proceeding evidence rightly seized under federal law. Since we hold that the evidence lawfully seized under the second federal warrant was admissible in the state court, we overrule appellant’s third point of error.

The searches conducted under federal warrants by federal agents must still meet constitutional protection against unreasonable search and seizure. Appellant in his fourth point of error contends that the trial court erred by overruling appellant’s suppression motion regarding evidence seized in violation of appellant’s constitutional rights. Specifically, appellant contends that the search warrants issued were invalid because they were based on defective affidavits. Appellant relies on the two-prong test set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, that test was abandoned in favor of a totality-of-circumstances test in Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983).

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concludpng]” that probable cause existed. Jones v. United States, [362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (I960)].

Id.

The affidavits provided to the U.S. Magistrate forming the basis for the search warrants in this case constitute a substantial basis on which the magistrate could have determined that probable cause existed. The affidavits outlined the investigation conducted by law enforcement officers and included hearsay testimony from a confidential informant. The informant reported conversations directly with appellant concerning dealings with the deceased. Further, the informant reported on appellant’s expertise with firearms and explosives, past incidences of observing appellant with such items, and recent attempts by appellant to buy explosives from the informant. The informant knew appellant’s home and business addresses as well as his personal telephone number, all of which were verified by law enforcement officers. The informant also identified appellant’s vehicles, which were verified as belonging to appellant. Furthermore, one of the vehicles was seen by an independent witness in the vicinity of the victim’s home during a period of two weeks prior to the crime. Finally, the informant reported that he had personally observed the appellant store explosives at his warehouse. Taken as a whole, the law enforcement officer’s affidavit reporting the testimony of an informant formed a substantial basis for the magistrate’s conclusion in this case that probable cause existed to search appellant’s home and warehouse. The information provided by the informant was credible because it was detailed, extensive, and partially verifiable. We therefore overrule appellant’s fourth point of error.

Over a month after this appeal had been submitted and without leave of court, appellant filed a supplemental brief containing a fifth point of error, asserting for the first time fundamental error in the court’s charge to the jury with respect to instructions on parole. Appellant’s fifth point is based upon the holding in Rose v. State, 723 S.W.2d 345 (Tex.Crim.App.1987). As indicated in Rose, since no objection was made in the trial court, appellant now has the burden of demonstrating egregious harm in order to obtain from this court the relief he seeks. See Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on rehearing). Appellant’s supplemental brief, however, contains no details concerning egregious harm. Thus, even though we have accommodated appellant by considering his belated brief, his fifth point of error must be overruled for lack of support. See Sanchez v. State, 722 S.W.2d 781, 784-785 (Tex.App.—Dallas 1986, pet. ref’d).

The judgment of the trial court is affirmed.

LAGARDE, J, concurred and filed an opinion.

HOWELL, J., dissented and filed an opinion.

1 . "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality.’” Quinones v. State, 592 S.W.2d 933, 941 (Tex.Crim.App.1980), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980).