Vasquez v. State

654 S.W.2d 775, 1983 Tex. App. LEXIS 4578
CourtCourt of Appeals of Texas
DecidedMay 19, 1983
DocketNo. C14-81-824-CR
StatusPublished
Cited by5 cases

This text of 654 S.W.2d 775 (Vasquez 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
Vasquez v. State, 654 S.W.2d 775, 1983 Tex. App. LEXIS 4578 (Tex. Ct. App. 1983).

Opinion

JUNELL, Justice.

Appellant was convicted, in a trial before a jury, of aggravated assault. After finding that appellant had been previously convicted of a felony, the jury assessed punishment at eighteen years confinement. We affirm.

At approximately 11:45 p.m., on August 21, 1981, David Pinnick and Wanda Sitler left Popper’s, a bar in Houston. While walking to Sitter’s car, they noticed a black Ford which appeared to be stuck “high centered” off an embankment in the parking lot. There were three Latin American males standing near the stuck car who were later identified as appellant, Esequiel Zepe-da and Ricky Basquez, appellant’s brother. Sitter’s car was parked behind the Ford. As Sitler attempted to back her car out, she hit the right rear of the Ford. As Pinnick exited Sitter’s car to check for damage, he noticed appellant had a knife. A fight ensued between Pinnick and the three other men. Pinnick stated that as appellant lunged toward him with the knife, he struck appellant in the face with his fist. After the brawl was broken up, Pinnick noticed that he had been stabbed in the side.

Leroy Sparkman witnessed the fight as he exited a nearby pizza parlor. After the fight, he observed Zepeda and Basquez “help” appellant walk to the side of a nearby building. Sparkman said appellant “had something in his hand” which was thrown into the hedge beside the building. Spark-man testified he then walked over to the bushes and saw a bloody buck knife.

Terry Rhodes, an off-duty police officer, was walking through the parking lot when he noticed the disturbance. Pinnick was bloody and informed Rhodes that he had been stabbed. After speaking with Spark-man, Rhodes detained appellant, Zepeda and Basquez until Houston police officer D.L. Bartlett arrived. Bartlett recovered the knife from the hedge; it was later identified as being consistent with the weapon used in the assault.

In his first ground of error, appellant complains he was not afforded a transcript of the court reporter’s notes from the examining trial. The record reflects the following colloquy at a pre-trial motion hearing:

THE COURT: Has he filed an affidavit for indigency?
DEFENSE COUNSEL: Yes sir. He was appointed a lawyer.
THE COURT: I need to keep that as a part of the record in case. Was there an examining trial?
DEFENSE COUNSEL: There was a brief examining trial. The complainant was called as the only witness.
THE COURT: You are entitled to that.

The record contains neither a request for a transcription nor an adverse ruling on any such request. The transcript contains “Defendant’s Motion for a Transcript of the Examining Trial” and “Defendant’s Motion for New Trial.” Both unsworn motions request a copy of the transcription; however, the motions were filed on January 21,1982, forty-one days after sentencing. Each [778]*778bears an unsigned notation, “not excepted [sic] by court. Not timely filed.” Appellant has failed to preserve error, if any. Compare Armour v. State, 606 S.W.2d 891 (Tex.Cr.App.1980). Ground of error one is overruled.

Appellant next urges that the State knowingly used perjured testimony. Officer Bartlett arrived at the scene at approximately 11:45 p.m. on the night in question. Officer Rhodes had detained the three suspects in the parking lot; Bartlett took the men into custody. The parking lot was well lighted. Bartlett stated that appellant was wearing neither shirt nor shoes, and he had blood on his face. After speaking with the witness, Sparkman, Bartlett recovered the buck knife from a nearby bushy area. The knife's five inch blade was covered with blood. Bartlett also testified that appellant was wearing a belt with a scabbard on the night in question. Bartlett admitted he made no mention of the scabbard in his offense report. Appellant places great emphasis on the fact that no other witness recalled seeing the scabbard. Additionally, appellant showed that appellant’s county jail property record did not contain a notation of a scabbard.

While the State is not permitted to obtain a conviction through the knowing use of perjured testimony, the appellant bears the burden of showing that testimony used by the State was in fact perjured. Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979). Here, appellant has failed to meet the initial burden of showing the testimony was perjured. Even though Officer Bartlett testified as to matters which were not contained in the offense report, this testimony is no showing of perjury. The credibility of his testimony was an issue to be resolved by the jury. Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974); Haywood v. State, 507 S.W.2d 756 (Tex.Cr.App.1974). Ground of error two is overruled.

As a corollary to the charge of perjury, appellant urges in grounds of error three and four that the court erred in allowing the state to elicit testimony that appellant was wearing a belt and knife scabbard on the night of the offense. Specifically, appellant contends that such evidence was suppressed by the State after a timely motion for discovery. The transcript before us contains no motion for discovery; the docket sheet indicates that the court heard “defense motions” and shows the rulings thereon to be “reflected in the court reporter’s notes.” To the extent we are able to discern, it appears that a motion for discovery was granted, at least in part, by the court. The facts to be considered upon a charge of prosecutorial suppression of evidence are: (1) suppression by the prosecution after a request by the defense; (2) of evidence favorable to the defense; (3) which is material to the case. Young v. State, 552 S.W.2d 441 (Tex.Cr.App.1977). We find no support in the record for the contention that the State suppressed anything. Moreover, we fail to see how testimony tending to show that appellant carried a scabbard would have been favorable to the defense. Grounds of error three and four are overruled.

Appellant next contends the court allowed the State to impeach its own witness. Appellant’s brother, Ricky Basquez, testified that appellant had scars on his face on the date of trial, but that appellant had no facial scars prior to August 21,1981, the date of the incident with Pinnick. When the State subsequently called Basquez as a rebuttal witness, he identified a photograph of appellant and testified that in December, 1978, Yasquez had a scar on the bridge of his nose. The court sustained appellant’s objection, “Counsel has called Mr. Basquez as her witness. She cannot impeach her own witness.” However, appellant never requested an instruction for the jury to disregard the line of questioning. When the State attempted to introduce the photograph into evidence, appellant made only a general objection which was overruled by the court. By failing to specifically request further relief, appellant has waived any complaint as to improper impeachment. See Boening v. State, 422 S.W.2d 469 (Tex.Cr.App.1967). Ground of error five is overruled.

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654 S.W.2d 775, 1983 Tex. App. LEXIS 4578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vasquez-v-state-texapp-1983.