Carlisle v. State

DOUGLAS, Judge,

dissenting.

The majority erroneously reverses the conviction and holds that the trial court abused its discretion in overruling appellant’s motion for new trial on the grounds of newly discovered evidence.

Willard Clinton Wright testified on behalf of appellant at the hearing on the motion for new trial. He stated that he saw appellant’s automobile near Plainview at approximately 3:00 a. m. on the morning of the murder. He further testified that the deceased was driving the automobile and a stranger was sitting on the passenger side of the front seat. Wright related that he saw someone lying in the back seat. The deceased told him that appellant was either asleep or passed out in the back seat.

Wright testified that the man in the car did not appear to be nervous. Wright related that he was getting some cattle off of the highway when the car stopped and he thanked the people for stopping and not hitting the cattle. The only thing he could remember about the man in the car was that he was medium sized. He could not give a further description.

The State presented testimony that Wright’s reputation for truth and veracity was bad. Appellant responded with rebuttal testimony. The trial judge heard the witnesses. He was in a better position to pass upon their credibility than this Court is.

The majority correctly states that the trial court has “considerable discretion” in granting or denying a new trial on the basis of newly discovered evidence. In order for a new trial to be granted on such basis, it must be shown (1) that the evidence was unknown to the movant before trial; (2) that the failure to discover it was not due to movant’s lack of diligence; (3) that it was competent, not merely cumulative, corroborative, collateral or impeaching; and (4) that its materiality was such as would probably bring about a different result on another trial. Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975); Henson v. State, 74 Tex.Cr.R. 277 , 168 S.W. 89 (1914).

Testimony was introduced that Wright’s testimony was unknown to him before trial *706 and the court found that there was no lack of diligence.

The majority is correct in writing “. the determining factor for our consideration is the effect such evidence would have on the jury in light of all the other evidence presented.”

An examination of the other evidence reveals that the deceased and appellant were seen together in a Hereford cafe on the morning of the crime. At approximately 3:00 a. m., they left the cafe, located about thirty miles from the scene where the deceased’s body was found.

Between 5:80 and 6:00 a. m. that morning a couple residing in Farwell was awakened by a loud noise which was similar to an aerosol spray can popping. They lived behind Bob’s TV Shop.

A woman observed appellant’s automobile in a vacant lot near the television shop between 5:30 and 6:00 a. m. She testified that both doors were open and the automobile’s dome light was on. Another witness observed the vehicle in the same location at 7:00 a. m. and saw someone who appeared to be asleep in the car.

The deceased’s body was discovered in the automobile at noon. She had been shot five times, apparently with a .38 caliber pistol. A deputy sheriff and other investigators found blood in the automobile at the right side of the driver’s seat. The ground surrounding the car was muddy. It had rained in Farwell the night before the homicide and the track of appellant’s automobile showed that it had skidded on the right side near the mud puddle which was wetter than the other ground around there. The investigators discovered caliche mud, apparently from the vacant lot, inside the car on the front seat, on the console, and on the back seat. It is apparent that the deceased was killed at this location in Farwell.

The testimony of the witness on motion for new trial that there was a hitchhiker at another place had nothing to do with the physical facts where the body was found. Only one set of tracks, appellant’s, was found at the scene.

A zippered bank bag owned by appellant and containing ten live .38 caliber shells was recovered from the vehicle. Several empty beer cans, várious bottles of pills, the deceased’s purse and wallet were also found inside the car. The wallet contained $166.00 in cash.

The investigators discovered a set of boot tracks that appeared to go from the passenger door around the car to the driver’s door. The tracks then appeared to go back to the passenger’s side and to a Phillips 66 station located nearby. After the crime, appellant had walked to that station and made several calls from a telephone booth there. He was first observed in the telephone booth between 7:30 and 9:00 a. m. Several pills were found on the floor of the booth.

The tracks also led away from the car in another direction. The deputy sheriff followed these toward an old wrecked car nearby. The tracks then led into a ditch where appellant’s wallet was found. It contained $101.00 in cash. A .38 caliber pistol containing five empty shells lay a few feet away. Appellant had purchased the pistol only eight days earlier.

The boot tracks were made by one person. Appellant’s boots matched those tracks. A Department of Public Safety chemist found blood on appellant’s trousers, pistol and bank bag.

Appellant testified that he did not shoot the deceased; that he and the deceased picked up an unknown hitchhiker while they were going to get married; that the hitchhiker forced appellant to take a combination of drugs and alcohol which rendered him unconscious; that the hitchhiker shot the deceased and vanished without leaving a trace of his presence; and that the “hitchhiker” did not take a substantial amount of cash, if any, from appellant or the deceased. The hearsay testimony given by appellant’s father and sister concerning what appellant told them after the murder is without probative value. See Hanna v. State, Tex.Cr.App., 546 S.W.2d 318 (1977); Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975).

The physical evidence surrounding the crime indicates appellant’s guilt. From the *707 record it is improbable that Wright’s testimony would produce a different result in the event of another trial. There is no showing that the trial judge abused his discretion in implicitly finding that a different result was unlikely.

The majority’s reasoning is unsound. It asserts, on the one hand, that the nature of appellant’s story is “incredible” and “bizarre.” On the other, it holds that the trial judge abused his admittedly “considerable discretion” in overruling the motion for new trial based on appellant’s self-serving version of the facts and supported only in a small degree by not a midnight but a three a. m. cowboy. The judge no doubt thought that the jury would not believe such testimony, and if it did, no different result would be reached in another trial.

This is not a case where the trial court refused to admit testimony offered during the trial. The proffered testimony came from a man who just happened to be looking for some livestock on a road at three o’clock in the morning many miles from where the body was found in appellant’s automobile. It does not corroborate appellant’s bizarre story of how the murder was committed. The majority should require more than such flimsy evidence to reverse a conviction because the court did not grant a new trial. Before this witness appeared the trial had been completed. Many witnesses testified. The statement of facts consists of more than a thousand pages. The record concerning the motion for discovery and the voir dire examination consist of 320 pages. All of this should not have to be repeated.

There is no abuse of discretion shown on the part of the trial judge in refusing to grant a new trial. The judgment should be affirmed.