TAYLOR v. STATE

OPINION

CLINTON, Judge.

These are appeals from convictions for murder and attempt to murder obtained in a single jury trial; life sentences were assessed in each cause.

I.

The sufficiency of the evidence to support the jury's verdict in the murder cause is challenged.

On May 16, 1979, Gregory Taylor (The State's main witness in these causes and the victim of the attempt) was walking down the street when appellant and Marilyn Garrett1 stopped to pick him up. According to Taylor—whose street name was "Rat" because "I am a thief"—he bought some gin and some Schlitz beer from a bootlegger. The three then rode around in appellant's car, drinking and shooting preludin through the afternoon. Later, after Rat2 took a bath at his mother's house, he was picked up about 11:00 p.m. by appellant and Marilyn again. Riding around, looking for more drugs, the three ultimately headed for a club in South Dallas called the Sunset Strip.

On arrival, Marilyn, who had been driving, parked the car and motioned a man she called "June Bug"3 over. She told him they were looking for some "preludes" and asked if he knew about any. June Bug indicated he did, and went inside to find his cousin, Eddy Lee Finch, also known as "Pun'kin," the soon to be deceased. Pun'kin came to the car and told the group he only had two preludin left, but he thought he knew where some more were. He went back inside and returned with a very large man who was only identified as "Big Lawrence." Big Lawrence told the group in the car that he had about 30 more preludin at his house and would get them if they would give him a ride there.

Big Lawrence and Pun'kin climbed into the back seat of appellant's two door Pontiac beside Rat who was behind appellant. Marilyn followed Lawrence's directions to an apartment on Loomis. There, Big Lawrence exited the car and went inside. After about five minutes, Lawrence came back out and was headed toward the driver's side of the car when, according to Rat, appellant pulled a pistol and pointed it at "everybody in the back seat." Rat testified, "I tried to push the back seat out and the gun went off." He sustained a gunshot wound to the chest.4 He lost consciousness. When he woke up, he jumped out of the car and landed on the pavement. After lying there momentarily, he got up and ran "around the corner and down about two or three streets," then ran to a house and passed out. According to Rat, he was missing over $100.00 in cash and a ring after the incident.

Dallas Police Officer R.W. Everett testified he and his partner received a radio dispatch at about 2:00 a.m. on May 17, 1979 about a shooting. On the 1400 block of Maryland Road,5 Everett and his partner found Rat who had been shot once, his head swollen to twice its normal size. After putting Rat into an ambulance, the officers proceeded to the apartment on Loomis where a dispatch about a shooting had gone out right before they were sent to Maryland Road. On arrival, they found a body at the top of the stairs at the apartment complex. Eddie Lee Finch (Pun'kin) had already been pronounced dead. Appellant's Pontiac was found with the headlights on and "the front door ... open" parked northbound in the southbound lane of the 3700 block of South Lamar—about 30 yards from the body of the deceased. According to Everett, about three different people "told [him] they had heard the gunshots and looked out and saw three people running from a vehicle that was parked in the 3700 block of South Lamar ...,"6 a woman and two men. The car was identified as appellant's.

Ballistics tests determined that Rat and Pun'kin were both shot with the same .38 caliber pistol. No blood was found in appellant's car. Marilyn's fingerprint was found on a Schlitz beer can recovered from the left front floorboard of the car and Rat's fingerprints were lifted from a hard hat which was found between the back seat and the back windshield.

Thomas F. Gilchrist, M.D., Dallas County Assistant Medical Examiner, testified he performed an autopsy on the deceased who had sustained two gunshot wounds at virtually point blank range: from two to five inches.7 The fatal bullet entered the left side of his back just above the waist, and traveled up, forward, and to the right, lodging in the chest muscle; this bullet passed through the left kidney, the inferior vena cava, the liver at the juncture of the left and right lobes, and the right lung before exiting the chest cavity and lodging in the right chest muscle.

The other bullet entered the front left chest muscle at about the armpit and exited about 4 cm. above and to the right of the entrance wound.

Dr. Gilchrist was not asked how mobile the victim might be or how long he might live after sustaining such injuries, though he did testify such wounds would not cause a lot of external bleeding. Like Rat, the deceased had no money on his person when found by the police, though witnesses testified he earlier had some money in his sock.

On direct examination, the prosecutor set up a hypothetical question in which five individuals were in a two door car and the deceased attempted to get out of the back seat on the passenger side; Gilchrist testified it would be consistent with the wounds sustained that he was shot by a person sitting in the front seat in the passenger side8 at close range. He also testified that the relationship between the two entrance wounds—that "they go through the body at the same angle"—would mean that it is a high likelihood that the victim was in more or less the same position as the shooter.

Gilchrist further opined that the soot on the wounds indicated the deceased was not running at the time he was shot.

On crossexamination, defense counsel suggested a hypothet in which the deceased was shot by "a person in the left front seat, behind the steering wheel,"9 as he "tried to get out the right side." Gilchrist conceded that any of the other persons in the car could have done the shooting, though some were more likely than others.

While the evidence establishing appellant's guilt of murdering the deceased is tenuous, and large unexplained gaps exist in the sequence of events, we believe a rational trier of fact could have found appellant intentionally caused Eddy Lee Finch's death beyond a reasonable doubt under the charge of the Court. Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Most compelling is the ballistics evidence that the deceased and Rat were shot with the same weapon; that weapon was placed in the hand of appellant by Rat's testimony. Clearly, Rat did not have the .38 revolver; Big Lawrence was not near the car at the time of the fray and the evidence indicates it was a friend of the deceased who, like the deceased, was unacquainted with the others in the car. Through a process of elimination only appellant and Marilyn Garrett remain as possible perpetrators of the murder. Under the trial court's charge, the jury was authorized to convict appellant if they found he intended to promote or assist in committing the murder and solicited, encouraged, directed, aided or attempted to aid another in its commission.

Taken as a whole, the evidence would not support any reasonable conclusion other than that appellant, either alone or as a party, committed the offense in question; accordingly, the ground of error attacking the sufficiency of the evidence to support the murder conviction is overruled.

II.

In both causes appellant complains of the trial court's permitting his coindictee's extrajudicial statement to be placed before the jury.

Placing the issue in context, the record reflects that during the State's case in chief, the prosecution was twice permitted over objection to have Marilyn Garrett Taylor brought into the courtroom and identified by witnesses.10 After the State rested and appellant adduced testimony that Rat had been known to carry a 9 mm automatic pistol,11 the defense called Marilyn Garrett Taylor to the stand. Asked to state her name, the witness replied "Marilyn Garrett." Then:

At the prosecutor's request, the jury was removed from the courtroom. He told the court:

After a ten minute recess, the witness's attorney stated he had consulted with his client and was ready to proceed. When the jury was returned to the courtroom, the following occurred:

By [Prosecutor]:

This type of questioning continued until the prosecutor had gotten before the jury the facts that the witness had said appellant was "in the front seat with [her]," that he "had a big revolver," had "pointed a pistol at the guy with the Preludin and took them out of his hand," that she and he "ran after the car died," that appellant "talked to Eddy Finch out in front of the Sunset Strip on Logan," that he was "going to rob a dope peddler," and that she, appellant, "Pun'kin, Rat and the other big dude went over to the apartment on Loomis to get some Preludes."

On redirect, defense counsel elicited from the witness that she could not read or write and that she was charged with the same offenses as her husband. She invoked the Fifth Amendment when defense counsel asked her, "so if you signed a statement, you wouldn't know what you were signing, would you?," and, "Do you remember signing a statement before a police officer?"

On recross, the prosecutor asked only, "Do you recall Investigator Robinson reading a statement to you prior to your signing?," to which the witness refused to respond on the ground that it might incriminate her.

Both sides rested. The entire extrajudicial statement was admitted for the record only at the request of defense counsel.13

The trial judge instructed the jury, apparently sua sponte:

Appellant now contends, as we understand it, that once it became clear from the State's crossexamination that the witness would invoke her privilege against selfincrimination, it was error for the trial court to permit the prosecutor to continue over his objection;15 that even if it can be argued the defense "opened the door," the State's response was patently improper resulting in the jury's contamination with "facts" not admitted or admissible from any other source and, perforce, manifest prejudice; and finally, that appellant was denied the right of crossexamination because the prosecutor who interjected the content of the statement was not a witness subject to crossexamination, and the witness who ostensibly gave the hearsay statement invoked her Fifth Amendment privilege.

The State retorts that "any error" was waived because appellant's objection was neither specific nor timely; that if not waived, any error is not reversible because appellant's action in calling the witness and eliciting her response that she did not wish to testify "was prejudicial to the State" and appellant should not benefit from error invited by his own prejudicial action; and finally, that if interjection of the content of the coindictee witness's statement was error, it was cured by the trial court's instruction to disregard it, and if not cured, the error was harmless beyond a reasonable doubt because without it, the State's case was not less persuasive.

HARMLESS ERROR

Taking the State's contentions in reverse order we first observe that there is no way seriously to argue that the selections of the content of Marilyn Garrett Taylor's statement which were offered for the jury's consideration, was harmless.

No one saw appellant "shoot Pun'kin." No testimony explained the 2½ hour lapse between the time the group left the Sunset Strip at 11:30 p.m. and the time witnesses heard an undetermined number of "shots" at approximately 2:00 a.m. in the 3700 block of Loomis. No testimony explained any of the gaps in the State's case on which an impartial jury could have based a reasonable doubt that appellant "shot Pun'kin." Of course, with the prosecutor's assertion of the fact that appellant's wife told an investigator he "shot Pun'kin," any reasonable doubt harbored by a juror was no doubt dispelled.

As stated earlier, Rat testified on direct only that he was shot when "the gun went off" after he "tried to push the back seat out." On crossexamination this matter was pursued a bit more:

Appellant was accused of "knowingly and intentionally shooting" Gregory Taylor with "the specific intent to commit the offense of murder."

Needless to say, once the jury heard that an eyewitness to the fray told an investigator appellant "shot Rat," the State's case on the attempt charge was secure.

Moreover, in supplying the jury with these facts that no admissible evidence could provide, the prosecutor did not even give a complete, much less fair rendition of the witness' statement which arguably exonerated appellant of all guilt: according to Marilyn's statement appellant "shot Pun'kin," but in defense of Rat, and he "shot Rat" by mistake. [See n. 13, ante, for complete content of statement.]

The suggestion that introduction of these facts supplied by the prosecutor was harmless is untenable. Neither was it possible to erase this critical "evidence" from the jury's collective consciousness by an instruction to disregard it—and particularly when the prosecutor, in violation of that very written instruction, argued in effect that the statement was not only made by Marilyn, but was made knowingly and intelligently by her. [See n. 14, ante.]

WAIVER

The only question left before turning to the merits, is whether appellant's counsel waived the error by inviting it, failing to object to it timely or on specific grounds.

Appellant avoids complaint of the State's forcing the witness to claim the privilege against selfincrimination in the jury's presence, no doubt because it is manifest that his conduct in calling her and eliciting her lack of "desire" to testify invited the State's response. In fact, it appears from the record that defense counsel fully expected the State to elicit the privilege from the witness and had no intention of objecting thereto. Clearly, appellant waived any objection to the witness' invocation of the privilege both by inviting it and failing to timely object.

But in this Court, appellant complains —not of the witness' answer (which requires an objection before it is given)— but of the prosecutor's questions. The increasing prejudicial impact and the determination of the prosecutor to continue in that vein was only discernable after a number of the questions had been posited; thus, after the third one, counsel objected "to this line of questioning."

We hold this objection was adequate to preserve the error under the circumstances presented, Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977), and we believe this conclusion is fortified by the fact that the trial court overruled it.

Moreover, we cannot agree that appellant's conduct in calling the witness as he did "invited" the State to thrust patently inadmissible, obviously harmful hearsay bearing on material issues into this trial. It is true the State had a right to crossexamine the witness and impeach her with competent evidence. See Mitchell v. State, 517 S.W.2d 282 (Tex.Cr.App.1975). But that is not what the record reflects. The witness was not being asked questions which would necessarily incriminate her, yet the State never asked the trial court to direct her to answer. The obvious reason is that forcing the witness to answer would have violated Article 38.11, V.A.C.C.P.16 and insured reversal whether appellant objected or not. See Johnigan v. State, 482 S.W.2d 209 (Tex. Cr.App.1972); Carabajal v. State, 477 S.W.2d 640 (Tex.Cr.App.1972).17

THE MERITS

In sum, the State neither expected the witness to answer nor wanted her to answer; thus, the sole intent was to get before the jury parts of her extrajudicial statement which was absolutely inadmissible for all purposes.18

Under similar circumstances, the Court has observed:

Lackey v. State, 190 S.W.2d 364, 365 (Tex. Cr.App.1945) quoting Short v. State, 79 Tex.Cr.R. 426, 187 S.W. 955, 958 (Tex.Cr. App.1916) and Brown v. State, 269 S.W. 1051, 1052 (Tex.Cr.App.1925).

The most similar case we have found to the instant one is Washburn v. State, 299 S.W.2d 706 (Tex.Cr.App.1956). There, the State called the defendant's coindictee to the stand; after stating his name, the witness invoked his Fifth Amendment privilege, but the State continued to interrogate him, eliciting his refusal to testify upon each question. Defense counsel objected to the State's asking additional questions which were placing matters before the jury which could not be shown directly. The objection was overruled. Questions propounded pointed to and inquired about the witness' association and participation with the defendant in making plans and preparations to commit a murder. None of the questions were answered. The conviction was reversed.

In the instant case, the State contends that Washburn, supra, is distinguishable because in that case the State initially called the coindictee witness. It is true that this is a distinction, but it is not a dispositive one in the case before us.

For while a basis for reversal in Washburn, supra, was the State's calling the witness and eliciting his invocation of the privilege,19 the Court considered it a separate reversible error for the State to continue interrogating the witness in the manner it did:

299 S.W.2d at 707-709.

Rejecting the State's motion for rehearing in Washburn, supra, the Court concluded:

299 S.W.2d at 709-710.

As previously stated, the State had every right to conduct proper crossexamination of Marilyn Garrett Taylor, and even elicit her invocation of the privilege under the circumstances;20 the State, however, was not entitled to have the witness invoke the Fifth Amendment repeatedly and, knowing she would do so, seize upon her refusal to testify as an opportunity to place before the jury parts of her hearsay statement which out of context incriminated her husband, the accused. For this manifestly prejudicial conduct on the part of the prosecutor which adulterated the very integrity of the factfinding process, these causes are reversed and remanded.

It is so ordered.

W.C. DAVIS, McCORMICK and CAMPBELL, JJ., dissent.

TEAGUE, Judge, concurring.

I find that the prosecuting attorney in this cause, after appellant's trial counsel got the "horse" up to the gate, got on the "horse," opened the gate, and thereafter rode the "horse" unmercifully. He caused much damage to appellant's pasture. The majority is correct in holding that reversible error was committed in this cause.

In Glasper v. State, 486 S.W.2d 350 (Tex. Cr.App.1972), up to a point, the same thing which happened in this cause happened there. In Glasper, a co-indictee was called by the defendant to testify. The witness refused to testify by invoking his Fifth Amendment privilege against self-incrimination. This Court set out the rules:

After stating the rules, this Court then stated the following:

In this instance, the prosecuting attorney did not drop the matter.

By what is stated in the majority opinion in this cause, the prosecuting attorney and the trial attorney for the appellant knew that the witness was a co-indictee of the appellant. Once the witness was called by the appellant, the prosecuting attorney should have been on his feet objecting like crazy and requesting that a hearing be held outside the presence of the jury. He did neither, but allowed appellant's counsel to lead the "horse" to the gate. When the "horse" did not do anything, the prosecuting attorney, with permission of the trial judge, got on the "horse," opened the gate and unmercifully rode the "horse" through appellant's pasture, doing much inferential damage to the pasture.

The prosecuting attorney in this cause, in conjunction with the trial judge's overruling appellant's objection, caused too much damage to be done to appellant's pasture for reversible error not to have occurred. I, therefore, reluctantly concur to the reversal.