Mathes v. State

765 S.W.2d 853, 1989 Tex. App. LEXIS 519, 1989 WL 21901
CourtCourt of Appeals of Texas
DecidedFebruary 1, 1989
Docket09-86-190-CR
StatusPublished
Cited by10 cases

This text of 765 S.W.2d 853 (Mathes 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
Mathes v. State, 765 S.W.2d 853, 1989 Tex. App. LEXIS 519, 1989 WL 21901 (Tex. Ct. App. 1989).

Opinions

OPINION

BROOKSHIRE, Justice.

Thomas Smith Mathes, III, revisited. See Ex parte Mathes, 755 S.W.2d 161 (Tex.App. — Beaumont 1988, pet. granted). Appellant was convicted by a jury of the offense of capital murder of Debra Davis. The evidence tended to demonstrate that Debra Davis cohabited with one John Van-diver. Vandiver was also murdered on the same evening or night. Appellant was indicted for capital murder as to each killing. In the indictment on the death of Ms. Davis, three co-defendants were named. A severance was ordered by the trial court which resulted in a separate trial for Appellant.

The jury convicted Appellant of capital murder. The jury at the punishment stage answered certain special issues.

Special Issue Number 1: “Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or another would result? Answer yes or no; answered ‘Yes’.”
Special Issue Number 2: “Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; answer yes or no; answered ‘No’.”

The co-defendants named in the indictment were Cecil Rudolph Covington, Jr., Dennis Derias Holland, Jr., and Joseph Bryan Ma-kosky. In substance, the indictment charged the four with intentionally causing the death of Debra Davis by shooting her with a firearm and cutting her with a knife while in the course of committing and attempting to commit robbery against John Vandiver and Debra Davis. The judgment and sentence of the court was that Appellant would be confined for life. The Appellant presents his appeal on six points of error. The first point of error is worded: “The trial court erred in allowing inadmissible double hearsay which allowed a witness to tell the jury what another witness said the Appellant said about the crime.”

Deputy Renfroe’s Testimony

Deputy Renfroe testified as to the amount of money that had been reportedly taken from the residence of Vandiver on the night of the homicides; the manner or mode of dress of Debra Davis and the fact that Miss Davis had not been sexually assaulted. Renfroe had received this information from one Michael Charbeneau. Charbeneau in turn had learned this same information from the Appellant, Tom Mathes, III. Renfroe further stated that according to Charbeneau, there had been a conversation between Appellant and Char-beneau in which Appellant reportedly had detailed in depth the events of the night of the homicides. At trial the court overruled the objection based on hearsay stating that the purpose of the trial court’s ruling was to establish the probable cause for the issuance of certain arrest warrants.

Decisional precedents firmly establish that a reversal does not result when hearsay testimony is admitted before the jury unless the accused can show that he was harmed. Perez v. State, 678 S.W.2d 85 (Tex.Crim.App.1984). More importantly, the rule has been well recognized that improper admission of evidence does not constitute reversible error if the same facts and evidence were proved by another witness and no objection was made to the later evidence relevant to the same facts. East v. State, 702 S.W.2d 606 (Tex.Crim.App.1985); Boles v. State, 598 S.W.2d 274 (Tex.Crim.App.1980).

[856]*856 Charbeneau’s Testimony

Michael Charbeneau testified at length. He knew the Appellant and identified the Appellant in the courtroom at the trial. Charbeneau had met the Appellant at his former employer, Freight Services International located on Greens Road. Charbe-neau had known the Appellant for approximately two years. They had become friends. Charbeneau, in fact, had moved in with the Appellant and the Appellant’s girl friend.

Charbeneau testified that the same evening after the Appellant had been questioned by Detective Renfroe he and the Appellant were riding in Appellant’s car. Appellant was driving. First, they discussed a certain .38 caliber pistol that Charbeneau had purchased for his own protection. Then, their conversation progressed and Appellant narrated fully the events and facts of the two homicides. Appellant said in substance that he was going to shoot Vandiver in the shoulder and the hip to begin and thereby make Vandiver tell Appellant where the money was. Also, Appellant stated that Cecil, Dennis and Joe were at the scene. Appellant further stated that Vandiver was lying on his belly in a pool of blood when Vandiver finally told Appellant where the money was located. Vandiver kept on begging for his own life. Appellant stated that the events had not gone exactly the way they were planned. Charbeneau, from the conversation with Appellant, had the understanding that Dennis had slashed the throat of Debra Davis because she was making too much noise. Appellant told Charbeneau the narrative of facts leading to Davis’ death. Appellant stated that Debra was wearing only a robe and she was lucky that she wasn’t raped. Appellant told Charbeneau that he (Mathes) had obtained $40,000 in money from the residence of Vandiver. Appellant had also obtained cocaine from the residence.

Prior to this conversation, Charbeneau, who was a stranger to the two killings, had read about the events and the details of the double murders as reported in the newspapers day by day. From the daily newspaper accounts, Charbeneau had learned that at the residence in question there was discovered 283 uncut grams of cocaine, $13,-000 in cash, and two sixty pound bails [sic] of marihuana. Upon pondering these newspaper reports, Charbeneau, who took no part in the killings and knew nothing of them until later, then mentioned these facts to Appellant, telling Appellant that it was stupid to leave that stuff. Appellant responded that by leaving the cocaine, the $13,000 in cash, and the two sixty pound bales of marihuana it would throw the police off the trail. Appellant also stated during the conversation that he had told and ordered Dennis to shoot John Vandi-ver. Appellant, towards the end of the conversation with Charbeneau, said that he had forgotten his wallet at the Vandiver residence and had to return to the decedent’s residence to retrieve his wallet on the same night. The conversation concluded with Appellant telling Charbeneau that Cecil Covington, Jr., Dennis Holland, Jr., and Joe Makosky had all been involved in the murders and that they were all at the scene of the killings.

The conversation summarized above was admitted before the jury without objection. This evidence was clearly admissible since these statements were made by the Appellant himself to Charbe-neau. These statements were certainly admissions and admissions against interests. As well, they were admissions by Appellant being a party-opponent. TEX.R.CRIM. EVID. 801(e)(2)(A). In fact, Rule 801 declares that admissions by party opponents (which are admissions and statements offered against that party and the admissions or statements are made by him personally and in his own individual capacity) are declared not to be hearsay. In view of Charbeneau’s testimony the brief and very generalized summary of events given by Deputy Renfroe could not have caused harm.

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877 S.W.2d 863 (Court of Appeals of Texas, 1994)
Ex Parte Mathes
830 S.W.2d 596 (Court of Criminal Appeals of Texas, 1992)
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816 S.W.2d 792 (Court of Appeals of Texas, 1991)
Whitmire v. State
789 S.W.2d 366 (Court of Appeals of Texas, 1990)
Mathes v. State
765 S.W.2d 853 (Court of Appeals of Texas, 1989)

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765 S.W.2d 853, 1989 Tex. App. LEXIS 519, 1989 WL 21901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathes-v-state-texapp-1989.