Wright v. State

644 S.W.2d 525, 1982 Tex. App. LEXIS 5460
CourtCourt of Appeals of Texas
DecidedNovember 10, 1982
DocketNo. 13-81-263-CR
StatusPublished
Cited by5 cases

This text of 644 S.W.2d 525 (Wright 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
Wright v. State, 644 S.W.2d 525, 1982 Tex. App. LEXIS 5460 (Tex. Ct. App. 1982).

Opinion

OPINION

NYE, Chief Justice.

This is an appeal from a conviction of murder. The jury which found appellant guilty assessed his punishment at life in the Texas Department of Corrections.

[527]*527Appellant’s court-appointed counsel filed a brief containing three grounds of error. Appellant filed a pro se brief with four grounds, two of which address issues covered by counsel’s brief. The remaining two grounds of the pro se brief challenge the sufficiency of the evidence. For clarity’s sake, we will first address the issues raised in the brief of appellant’s attorney.

The first ground contends the trial court erred in denying appellant’s timely request to re-open his case prior to arguments of counsel. The record shows that both sides rested in the afternoon of the sixth day of trial. The following morning, prior to the beginning of the closing arguments, defense counsel moved to re-open the case in order to recall a state’s witness. The motion was denied by the trial court.

Appellant relies on Tex.Code Crim.Pro. Ann. art. 36.02 (Vernon 1981), which provides:

“The court shall allow testimony to be introduced at anytime before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”

The decision to re-open a case has long been held to rest in the sound discretion of the trial judge. Scott v. State, 597 S.W.2d 755 (Tex.Cr.App.1980); Perry v. State, 464 S.W.2d 660 (Tex.Cr.App.1971). However, that discretion is limited when the motion to re-open comes prior to the beginning of final arguments. In such situations, it may be reversible error to refuse the request if the evidence is admissible, unless, of course, its introduction would have impeded the trial or interfered with the due and orderly administration of justice. See: Scott v. State, supra, at 758, citing Vital v. State, 523 S.W.2d 662, 664-65 (Tex.Cr.App.1975). See also Meeks v. State, 135 Tex.Crim. 170, 117 S.W.2d 454 (1938). The substance of the evidence excluded is an important factor in determining whether there was an abuse of discretion.

In the instant case, the defense sought to re-open in order to further cross-examine Jesse Jones, a state’s witness. Jones, a clerk at a gas station/convenience store, testified that the appellant and the deceased were both at the store (where he worked) at the same time on the evening the deceased was killed. He further testified that the deceased had requested directions to a certain street and was directed by one Gregory Darby,1 who was in the company of the appellant that night.

The stated purpose of recalling Jones was to clarify the sequence of events regarding when the deceased requested directions. In his motion to re-open, defense counsel quoted at length from Jones’ prior testimony at appellant’s examining trial. There, Jones had stated that the deceased had asked for directions after he had purchased some beer and cigarettes. At the actual trial, Jones testified that the victim had made his request before his purchase. This was the only discernible discrepancy in the testimony.

This sequence of events was not relevant to any contested issue in the trial. Appellant admitted, before the jury, that he was present at the store with Darby and Jones that night when the deceased requested directions. Jones’ testimony was far from being the only link between the appellant and the deceased. The State produced other and more substantial and even more damaging evidence to tie the appellant to the crime. Impeachment of Jones’ story concerning the timing of the events which occurred while the deceased and the appellant were at the store would not have had any effect on the outcome of the trial. The record shows further that Jones was called on two different occasions earlier in the trial. The defense had ample opportunity to cross-examine him then.

While there is no evidence one way or the other as to how much delay would have resulted in the recall of witness Jones, under all the circumstances, we decline to hold that the trial court abused its discretion in denying the motion to re-open for the reasons advanced. Ground of error number [528]*528one is overruled. See Wilkinson v. State, 423 S.W.2d 311 (Tex.Cr.App.1968).

Next, appellant’s counsel assigns as error the trial court’s admission of evidence which was objected to as fruit of an illegal search. A hearing outside the presence of the jury was had on appellant’s motion to suppress evidence obtained in a search of appellant’s residence made pursuant to a consent-to-search form executed by the appellant while he was in custody in connection with an unrelated offense. The basis of the motion to suppress was that the appellant’s arrest was illegal, and there were not sufficient intervening circumstances to remove the taint of the arrest from the items seized with the consent obtained from appellant while he was under arrest.

During the suppression hearing, the following facts came to light: Early in the afternoon of November 10, 1978, the day after the occurrence of the murder of which appellant was convicted, officers Ron Ric-hert and Lee Jaster of the Houston Police Department were called to the scene of a shooting on Houston’s near north side. (It was later determined that this shooting occurred on the same street as appellant’s residence and just a few blocks from a murder the day this event occurred.) When Richert and Jaster arrived, they found a gunshot victim, still alive, with undetermined wounds, lying in a residential garage. Also present were the owner of the property and the appellant. The officers told the appellant to wait outside for questioning. Instead, the appellant fled the scene. Though neither officer saw the appellant leave, Richert, acting on the directions of bystanders, chased after the appellant for approximately two blocks, without catching sight of him.

A short time later, another witness at the scene came forward with a .25 caliber automatic pistol, which had been found in a ditch in the path of appellant’s flight. (This gun was later determined to have been used in the prior murder.) Sometime later, the appellant returned to the scene of the crime in different clothes. When approached, the appellant insisted that he had just arrived and denied having been at the scene before.

By the time the appellant returned to the crime scene, one Charles Miller had confessed to the shooting. However, Officer Ric-hert testified at the suppression hearing that he had been informed by other witnesses that the appellant was also involved. Officer Richert testified that he was informed that the appellant had dropped the recovered pistol and that the appellant was looking for it when he returned to the scene. The officers arrested the appellant at the scene of the crime without a warrant.

These facts are clearly sufficient to support the trial court’s finding that officers Richert and Jaster had probable cause to arrest the appellant in connection with the present shooting.

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Bluebook (online)
644 S.W.2d 525, 1982 Tex. App. LEXIS 5460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-state-texapp-1982.