Moscatelli v. State

822 S.W.2d 693, 1991 Tex. App. LEXIS 3139, 1991 WL 269675
CourtCourt of Appeals of Texas
DecidedDecember 19, 1991
DocketNo. 13-90-346-CR
StatusPublished
Cited by3 cases

This text of 822 S.W.2d 693 (Moscatelli 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
Moscatelli v. State, 822 S.W.2d 693, 1991 Tex. App. LEXIS 3139, 1991 WL 269675 (Tex. Ct. App. 1991).

Opinion

OPINION

NYE, Chief Justice.

Appellant was convicted of murder after a plea of not guilty, and punishment was assessed by the jury at thirty-five years in prison and a fine of $10,000. Appellant brings three points of error and urges reversal on grounds that the trial court abused its discretion by denying appellant’s motion for mistrial when State’s witnesses violated the rule of exclusion of witnesses (the Rule) and spontaneously testified to an extraneous offense. Appellant further claims the trial court erred in “stacking” appellant’s state sentence on a federal sentence. We briefly review the facts.

Charles Moscatelli, Jr., and his estranged wife, Georgia, were in the process of getting a divorce in 1988. The marriage, appellant’s fourth, had been short and stormy, allegedly due to Georgia’s use of marihuana and cocaine. There was evidence that appellant and the deceased fought frequently, and on many occasions both parties fought violently. Georgia’s body was found in appellant’s house with three gunshot wounds and with her wrists slashed. Appellant contended that the decedent was angry with him about their property settlement and that she came to his house intoxicated and high on cocaine. Appellant maintained throughout trial that Georgia, enraged and threatening to kill him, initiated a violent fight which ended in appellant shooting her in self defense. The coroner’s toxological report showed traces of cocaine in Georgia’s blood. A medical expert further testified that the three bullet wounds sustained by Georgia Moscatelli were at an angle which indicated that the bullets had come from below — consistent [695]*695with the theory that there had been a struggle for the discharging weapon.

In his first point of error, appellant claims that reversible error occurred when the trial court failed initially to grant a mistrial because of violations of the Rule, and then failed to instruct the jury to disregard Sylvia White’s testimony. Sylvia White had been a clerk for Justice of the Peace Beatrice Gonzales in Victoria for ten years and was serving as Justice of the Peace herself at the time the offense was committed. The State called her to testify about conversations she had with appellant during the latter part of 1988. White testified that during these conversations, appellant had asked her various questions of a legal nature, such as what would be a “good defense” for him in his “situation;” he stated that he had shot Georgia three times in order to make sure she would not get up again; and he had commented that, without knowing why, he had slashed the victim’s wrists after shooting her. White testified that she had told Beatrice Gonzales, Beth Hawes Chamrad, and Jaime Flores, a DPS officer, about these conversations between herself and appellant shortly after they occurred.

After White finished testifying on Thursday, she rode back to Victoria with her friend Beth Hawes Chamrad. Chamrad had been present in court that day during White’s testimony until, on appellant’s cross-examination, White testified that Chamrad was one of the persons she had told about her conversations with appellant. Appellant’s counsel immediately designated Chamrad as a possible witness and had her sworn and placed under the Rule. Appellant contends that, during their drive back to Victoria together, White discussed the remainder of her cross-examination testimony with Chamrad. However, the record does not clearly establish whether the two women discussed the substance of that testimony or merely discussed the event of the trial and counsel’s strenuous cross-examination techniques.

In Victoria on Friday, White, Beatrice Gonzales, and Chamrad had lunch together. Part of the lunch conversation concerned counsel’s cross-examination of White, and White informed the others that, in her testimony, she had mentioned their names as people whom she had told about her conversations with appellant. Appellant contends that this conversation, a telephone conversation between White and Gonzales early Friday to set up the luncheon, and the conversation between White and Cham-rad on the road, violated the Rule and that such violations require reversal.

In a hearing conducted out of the jury’s presence, appellant’s counsel called Cham-rad, Gonzales, and White to the stand and adduced the substance of all of these conversations. Counsel promptly moved for a mistrial, and, upon the motion being denied, he moved to strike White’s testimony, for an instruction to disregard, and for a limiting instruction. All of these requests were denied. After the Rule hearing, appellant’s counsel called White, Gonzales, and Jaime Flores to the stand to testify before the jury. White and Gonzales repeated their testimony regarding the Rule violations. Appellant’s counsel further questioned Gonzales about the facts of the case, but Gonzales testified that she did not remember White ever telling her about conversations White had with appellant. Counsel did not call Chamrad to testify before the jury. Appellant called Jaime Flores to the stand for the first time after Gonzales testified.

It is clear from this record that Rule violations occurred. While the Rule ought to be complied with, not every violation is reversible error. Beets v. State, 767 S.W.2d 711, 746 (Tex.Crim.App.1987), cert. denied, — U.S. -, 111 S.Ct. 538, 112 L.Ed.2d 548 (1990). Enforcement of the Rule is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion or injury to the defendant. Beets, 767 S.W.2d at 747 (citations omitted). Despite the Rule violations, appellant does not show injury. Injury must be established by showing two things: (1) the witness actually conferred with or heard the testimony of the other witness; and (2) the witness’s testimony contradicted the testimony of a witness [696]*696from the opposite side or corroborated the testimony of another witness he had conferred with or had otherwise actually heard. Webb v. State, 766 S.W.2d 236, 240 (Tex.Crim.App.1989).

With respect to White’s testimony, appellant fails to meet the first element of the above-referenced test. The purpose of the Rule is to prevent corroboration, contradiction, and the influencing of witnesses. The influence to be avoided is that between witnesses who testify subsequent to one another at trial. Beets, 767 S.W.2d at 746 (citations omitted). White testified before any Rule violation occurred. Therefore, her trial testimony could not have been influenced by the violation.

While Gonzales’ testimony does meet the first prong, it fails to meet the second. Gonzales testified that she did not remember having any conversations with White about Charles Moscatelli. Neither did she remember any of the specific statements White attributed to him, such as the statements about the victim being shot three times, or the victim’s wrists being slashed. Although Gonzales was called by appellant and her testimony and White’s conflicted, appellant could not have been harmed by the inconsistency. Appellant’s case was aided by Gonzales’ testimony because it advanced his theory that the conversations were either fabricated by White or were so insignificant to her that she failed to inform any authorities that Charles Moscatelli had made inculpatory statements to her.

Chamrad was never called to testify before the jury, and therefore, appellant can have no complaint regarding Chamrad.

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Cite This Page — Counsel Stack

Bluebook (online)
822 S.W.2d 693, 1991 Tex. App. LEXIS 3139, 1991 WL 269675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moscatelli-v-state-texapp-1991.