Washington v. State

MILLER, Judge,

concurring and dissenting.

I agree with the majority’s treatment of appellant’s sole ground for review and therefore join that opinion. I do not agree, however, that this cause should be remanded to the court of appeals for a harm analysis. Tex.R.App.Proc. 81(b)(2). I, like my brethren Baird and Overstreet, believe that this Court should perform this analysis. See Saenz v. State, 843 S.W.2d 24, 30 (Tex.Crim.App.1992) (Baird, J., concurring and dissenting), and Owens v. State, 827 S.W.2d 911, 918 (Tex.Crim.App.1992) (Overstreet, J., concurring and dissenting). I agree that “the more appropriate disposition would be for this Court to make such a [harm] determination now while the case is before us rather than keeping it in ‘appellate orbit’ by remanding it back to the court of appeals.” Owens, 827 S.W.2d at 918 . Therefore, in this cause I would perform the harm analysis in the following vein and remand this cause to the trial court for a new trial.

In determining whether an appellant has been harmed by error below, we examine the effect of the error by considering its source, nature, emphasis and probable collateral implications; i.e., the error’s possible prejudice upon the jury’s decision. Harris v. State, 790 S.W.2d 568, 584-88 (Tex.Crim.App.1989).

Without question, appellant’s trial was a highly contested one, and the witnesses relied upon by the State differed both in terms of their credibility and their importance to the State’s case. Appellant’s brief to the court of appeals contains an uncon-troverted rendition of the testimony of several witnesses which places the testimony in context. Five of the State’s witnesses 1 testified that they had observed appellant and Joe Sidney Williams either in or exiting a blue-green pontiac which later proved to be the victim’s automobile. Three State’s witnesses 2 testified that appellant had, on the night of the crime, attempted to sell a VCR and a microwave oven to various individuals, while appellant’s brother-in-law, Don Davis, and an inmate, Sammy Joe Crawford, testified that appellant had admitted burglarizing the victim’s house, but had denied killing the victim. Crawford also stated that appellant admitted having sexual intercourse with the victim. Additionally, Booker Sterling related that while standing outside the closed door of a motel room, he overheard a conversation in which appellant stated that he and Williams had beaten the victim to prevent her from testifying. Fate Dotson, who was in the room *192 at the time, testified that appellant inquired of Williams as to why he had bitten a woman, and Williams had responded “ ‘never mind’.”

Despite this testimony, all of the witnesses mentioned were suffering from some defect sufficient to call into question their credibility. Don Davis “admitted to having mental problems, and ... to hearing his father’s spirit and voice”’ (which would, at times, “take over his body”), and that he was not being treated for this condition when appellant conversed with him in jail. Similarly, Booker Sterling was subject to a pending indictment for delivery of drugs. Finally, Sammy Joe Crawford was a jail inmate who had been to prison on three occasions: twice for burglary and once for forgery. 3

In contrast to the testimony of the other State’s witnesses which either connected appellant with Williams or tended to provide exculpating statements regarding the victim’s murder, Billy Joe Wilkerson also recounted appellant’s alleged admission of murder. Appellant notes in his brief before the court of appeals that “Wilkerson was an important witness” because “[h]e put Appellant [sic] together with Joe Sidney Williams[,]” and because he “related inculpatory statements which he heard Appellant [sic] make.” 4 Appellant’s Br. to the Court of Appeals at 44. Like the other State’s witnesses, Wilkerson’s credibility was in issue due to his chronic drug use, prior convictions for forgery and possession of cocaine, and his having been paid by a friend for his testimony. Considering those facts, his wavering recollection regarding his sobriety and the night’s events would have been less than surprising to the jury; the reliability of those comments would, therefore, have been a major issue. Unlike the other witnesses however, his recitation of the alleged admission (which was never actually impeached) was improperly buttressed when it was played before the jury. Wilkerson’s testimony, in comparison to the testimony of the other witnesses, was significantly more important: given the lack of overwhelming evidence of appellant’s guilt, it is safe to say that he was the State’s “Star Witness.”

The record reflects that counsel for the defense did not attempt to introduce the tape into evidence, and that no reference was made to it. Further, the trial court granted the State’s request for production of the item over the defense counsel’s repeated strenuous objections against being directed to provide work-product they “required during the course of [their] preparation for the defense of th[e] trial.” Statement of Facts, Vol. IV, p. 798. The trial court, during the in camera hearing, made no attempt to separate items on which the witness was impeached from matters on which he clearly was not. 5 Thus, the State’s airing in the presence of the jury of a recording never utilized by the defense in open court can be seen as an improper attempt to bolster Wilkerson’s testimony on the inculpatory comments relating to appellant.

Reviewing the record of this hotly contested cause in light of the trial court’s error in failing to exclude the contents of the tape recording as appellant’s work-product, I cannot conclude beyond a reasonable doubt that the error made no contribution to his conviction. See Tex. R.App.P. 81(b)(2); Harris, 790 S.W.2d at *193 588 . Therefore, I would reverse the decision of the court of appeals and remand this cause to the trial court for a new trial. Because the majority does not engage in this harm analysis, I dissent to the remand to the court of appeals.

BAIRD and OVERSTREET, JJ., join this concurring and dissenting opinion.

Appendix A

Q: In the course of that conversation with Mr. Youngblood, do you recall answering a question he put to you that was along these lines: He wanted to know if you were going to testify and if you had been subpoenaed and what you had to say. And you responded something to the effect of “I’m just going to say that I saw him the night that he did it” — and then Mr. Youngblood asked you “who did you see?”, and do you recall responding “Don”?

A: No.

Q: You don’t recall that period — did that happen? Did he ask you that question, and did you respond first with the name Don’t

A: No. (R. 4757-758). (emphasis supplied).

Q: Do you recall the conversation with Mr. Youngblood on that same occasion when you were asked if you had gone from the apartment complex over to Clifton street, do you recall answering him, yes that you rode in that green car with Calvin?

A: Say that again.

Q: Do you recall being asked where you went when you left the apartment complex on the night that you are saying this happened. And you recall in responding to him that you left the apartment complex and got a ride with Mr. Washington in that green car, bluish green car that you had been talking about? Do you remember telling Mr. Youngblood that?

A: Yes.

Q: So what you have just told this jury here this morning about never having seen that car again is not true is it?

A: I wanted to get him out of my house. I was telling him anything.

Q: You just be telling him anything?

A: Uh-huh.

Q: But you did tell him that?

A: Yes. (R. IV 758-759). (emphasis supplied).

Q: Let me ask you, sir: Do you recall in response to a question by Mr. Young-blood on August 17, 1986 at your home — do you recall saying to him, yes, I was high?

A: Yes.

Q: Okay. Did you in fact go on to describe to him—

A: He asked me if I got high. I told him, yes, I got high. I didn’t say I was high at the time.

Q: You now deny that you told Mr. Youngblood that you were high on the occasion of whatever day it was that you say you had this contact with Calvin Washington?

A: Uh-huh.

Q: You deny that to this jury?

A: No.

Q: And you also deny that you ever told Mr. Youngblood that you were high on that occasion?

A: No I didn’t deny it.

Q: Let me ask you this. Would you tell the jury whether or not you told Mr. Youngblood on August 17, 1986 that when you had this experience that you have related with Calvin Washington that you were in fact high on drugs?

A: Yes.

Q: You did tell him that?

A: Yes. (R. IV 762-764). (emphasis supplied).

Q: Let me ask you about that same conversation again as relates to August the 17th, 1987. On that occasion when Mr. Youngblood was asking you questions about this incident that you have related, did you in fact tell Mr. Young-blood on that occasion that you had *194 seen that car and with Calvin Washington in it on an earlier occasion prior to the time that you saw it there at the apartment complex?

A: I don’t remember.

Q: Okay. Do you deny making the statement

A: No.

Q: Okay. Do you recall saying in fact that you had seen Calvin residing around in that car about the time it was getting dark?

A: Yes. I remember telling him that.

Q: Okay. Now we’re talking about a contact that occurred on whatever time it occurred, the same day that you say you saw him walking by the ear there in the parking lot when, you’re talking to Mr. Youngblood on August 17th about that same very exact date, you also told Mr. Youngblood that you had seen Calvin Washington earlier in the day in that same car about dark?

A: Yes.

Q: And that also is not what you just testified to this jury, is it

A: Sir, now?

Q: That also is not the same as what you have just testified to this jury?

A: No.

Q: Now, when Mr. Youngblood on that same occasion asked you about drug habits, did you say to Mr. Youngblood that you shoot up at least three or four times?

(objection overruled)

Q: When Mr. Youngblood was asking you about your drug habits then and now as March of 1986 and as August 1987, did you in fact on that occasion when Mr. Youngblood was asking you about your drug habits, did you say to him that you shoot up — meaning that you inject yourself with drugs — three or four times a day, and on Saturday five to ten times a day?

A: Yes.

Q: You did in fact tell him that?

A: Yes.

Q: Is that true?

A: No. (R. IY 763-765)

. Billy Joe Wilkerson, Larry Dotson, Harold Brown, Waymond Dotson and Alberta DeGrate.

. Brown, Waymond Dotson and Booker Sterling.

.Likewise, other witnesses for the State had doubtful credibility. Geraldine Douglas was on probation for welfare fraud; Larry Dotson had been convicted of three felonies and four to six misdemeanors; Harold Brown had been convicted of a drug offense; Waymond Dotson admitted to perjury during the previous trial of co-actor Williams; and Alberta DeGrate had served three sentences in prison and was on parole at the time of trial. Attempting to further discredit the State’s witnesses, the defense presented the testimony of eighteen police officers and two private investigators all of whom testified as to the bad reputations for truth and veracity of various witnesses.

. Appellant’s assertions are not controverted by the State.

. This should not be read to imply that presenting a redacted version of the tape would have saved the trial court's ruling; in fact we have ruled that the entire tape was privileged. That the in camera hearing resulted in full production of the recording simply lends further credence to the idea that appellant was harmed.