Roy Wayne Seagroves v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-91-509-CR ROY WAYNE SEAGROVES, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY, NO. 349-578, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING After a jury found appellant guilty of the offense of theft of property of the value of twenty dollars or more but less than two hundred dollars, Tex. Penal Code Ann. § 31.03 (e)(2)(A) (1989), the court assessed punishment at sixty days' confinement in jail and a fine of one thousand dollars. Both jail time and fine were probated. Appellant urges seven points of error. Appellant asserts the court erred by: (1) denying him the opportunity to pursue the issue of bias of the two prosecution witnesses; (2) failing to permit appellant to offer expert testimony regarding the futility of pursuing a civil claim against the State's witnesses and their employer until the resolution of the instant cause; (3) failing to grant appellant's requested charge on his obligation to submit to the authority, questions and detention of the store personnel; (4) refusing to permit appellant to depose the complainant's employer so that appellant could identify and subpoena eyewitnesses to testify in his behalf; (5) preventing appellant from impeaching, by extraneous evidence of a prior inconsistent statement, the witness Montgomery; (6) permitting the State to introduce transcribed conversations between defense counsel and witness Montgomery; and (7) restricting the direct examination of appellant's three character witnesses. We overrule appellant's points of error and affirm the judgment of the trial court. Leigh Lewis, grocery manager at an H.E.B. store in Austin, testified that on October 26, 1990, he observed appellant walk out of the doors of the store with a full basket of merchandise without ever stopping to pay for the merchandise at a register. Appellant first came to the attention of Lewis when appellant went around a register at the front of the store with a "basket set up in a way that looked suspicious to me." Lewis, an employee of H.E.B. for thirteen years, had seen "over 200" shoplifters. Lewis related that appellant's basket "looked suspicious" because there were "high dollar items" placed around the sides of the basket. These items were too large to fit in a bag. Thus, a person leaving the store with items too large for bags would not attract the attention of other persons. Also, by arranging large items around the sides of the cart, shoplifters may place smaller items in the center, remove the smaller items, conceal them on their person, leave the basket with the larger items in the store and exit the store without paying for the smaller items. Lewis told Russell Montgomery, a produce manager for the store, that he had a "possible shoplifter" and asked Montgomery to accompany him and observe the suspect. Lewis and Montgomery followed appellant outside the store where Lewis asked to see appellant's receipt for the merchandise. Appellant agreed and the three of them walked back into the store. Before arriving at a register, appellant shoved Montgomery and ran toward the door. Lewis and Montgomery chased appellant until they apprehended him outside the store. A struggle ensued before appellant was subdued and held for the police. Appellant testified that he never left the store with the basket of merchandise. In his first point of error, appellant asserts the court erred in denying him the opportunity to pursue the issue of bias of the two witnesses for the State, both of whom are H.E.B. employees. Appellant notes that the only factual dispute at trial was whether appellant exited the store's doors with a cart of merchandise before he was stopped by Lewis and Montgomery. Appellant suggests that as a result of the employee's action in stopping appellant, the employees and their employer face the prospect of a civil lawsuit if the jury believed appellant's version. Appellant reasons that the employees would have suffered reprisals at the hands of their employer for having created such potential liability. The refusal of the court to allow cross-examination about the possibility of such reprisals forms the basis of appellant's complaint. In Hurd v. State, 725. S.W.2d 249, 252 (Tex. Crim. App. 1987), the court stated: The practice of exposing a witness' motivation to testify against a defendant is a "proper and important function of the constitutionally protected right of cross-examination." In exercising that right, a defendant is allowed great latitude to show any fact which would tend to establish ill feeling, bias, motive and animus on the part of the witness testifying against him. This right to confront witnesses does not prevent a trial court from imposing some limits on the cross-examination into the bias of a witness. Trial courts retain some discretion in deciding how and when bias may be proved, and what collateral evidence is material for that purpose. In exercising this discretion, the trial courts have the latitude to impose reasonable restrictions on such cross-examination. (Citations omitted). In Carillo v. State, 591 S.W.2d 876, (Tex. Crim. App. 1979), rev'd on other grounds, 744 S.W.2d 112 (Tex Crim App. 1988), the defendant sought to impeach state witnesses with evidence of alleged offenses committed by them and known by the State. The court held that the defendant's cross-examination of the witnesses to show their bias and motive for testifying against him was properly restricted where no charges had been filed against the witnesses. The court concluded that the defendant was seeking to impeach the witnesses on the basis of speculation as to the pressure the witnesses might have felt to testify favorably for the State. Similarly, in Spriggs v. State, 652 S.W.2d 405, 408 (Tex. Crim. App. 1983), the court stated that it would have been highly speculative to infer that a witness was motivated to testify for the State because of the possibility that he might be indicted as a repeat offender because of a prior conviction. In a bill of exception, appellant presented the testimony of an attorney who said that a conviction of appellant would effectively preclude any recovery by him in a civil suit. Appellant suggests that it is therefore necessary for him to wait until the conclusion of this cause before determining whether to file a civil suit. This factor does not, in our opinion, render any less speculative appellant's proposed cross-examination of the witnesses about the possible adverse results they might suffer because of a potential civil suit against their employer. We find no abuse of discretion in disallowing appellant's proposed cross-examination. Appellant's first point of error is overruled. In his second point of error, appellant asserts the court erred in refusing to admit evidence of the futility of pursuing a civil suit until the resolution of the instant cause. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Crim. Evid. Ann. 401 (Pamph. 1992). In Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991), the court stated, "Rule 401 deems `relevant' any evidence which influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case." We find the matter of when a civil action should be filed to have no relevance in the determination of guilt or innocence in the instant cause. Appellant's second point of error is overruled. In his third point of error, appellant contends the court erred in failing to grant his requested charge on the law regarding appellant's obligation to submit to the authority, questions and detention of the store personnel. Without citation of authority, appellant contends the court erred in refusing to submit the following instruction in its charge to the jury: You are instructed that under our law a person has a right to be free from unjustified detentions and restrictions of his freedom of movement; he has a right to avoid encounters with others; and he is under no obligation to speak with anyone concerning anything. Under the facts of this case, if Wayne Seagroves had exited the store, then a detention of him by store personnel would have been justified. Texas Code Crim. Pro. Ann. art. 18.16 (1977) and Tex. Civ. Prac. & Rem. Code Ann. § 124.001 (1986) address the matter of when a person may detain another to prevent the consequence of theft. Article 18.16 provides: All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay. Section 124.001 states: A person who reasonably believes that another has stolen or is attempting to steal property is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property. We find appellant's requested jury instructions to be contrary to the law governing the detention of persons under the instant circumstances. Appellant's point of error number three is overruled. In his fourth point of error, appellant asserts the court erred "in refusing to permit [appellant] to depose by written questions the complainant's employer, H.E.B., so that [appellant] could identify, locate, interview and subpoena eyewitnesses to testify in his behalf." In May v. State, 738 S.W.2d 261, 273 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 872 (1987), the court discussed the burden a defendant bears in showing that the trial court abused its wide discretion in refusing to grant his request to take a deposition under Tex. Code Crim. Proc. Ann. art. 39.02 (1979). In May, the court stated: Article 39.02 provides that a defendant may take a deposition upon a showing of "good reason" for doing so. The trial judge has wide discretion in deciding whether to order a deposition. It is incumbent upon a defendant to show a good reason for the deposition; and, in the event his request is denied, he must demonstrate harm to establish an abuse of discretion. 738 S.W.2d at 273. (citations omitted). After the court's refusal to grant the request for depositions, a motion for continuance was granted at the instance of appellant for the purpose of identifying and locating other eyewitnesses. Appellant complains that the two lists of employees furnished him by the "unit manager" of H.E.B. contain inaccuracies. At the hearing on appellant's motion for new trial, defense counsel related that the foreman of the jury would testify that the jury placed great reliance on the fact that the State offered the testimony of two eye-witnesses to controvert the testimony of appellant. Appellant asserts that there are at least two other eye-witnesses, a cashier and a bag boy, that he has been unable to locate. The appellant has advanced nothing more than speculative reasons why he was harmed by the court's action in denying his motion to take depositions. We find that the trial court did not abuse the wide discretion accorded it in ruling on motions of this type. Appellant's fourth point of error is overruled. In his fifth point of error, appellant asserts the court erred in not allowing him to impeach a witness with a prior inconsistent statement. Appellant offered a portion of a transcription of a telephone conversation he had with Montgomery to impeach Montgomery's testimony at trial that appellant was outside the store when he first saw him. The State requested that the entire transcription be admitted under the rule of "optional completeness." See Tex. R. Crim. Evid. Ann. 107 (Pamph. 1992). The court delayed its ruling until the completion of the testimony in order to review the transcription. Appellant concedes that the court subsequently admitted the transcription, but urges that the court's delay in ruling on its admission diminished the effectiveness of his cross-examination. Appellant has not demonstrated, nor do we perceive, any harm to appellant resulting from the delay in the court's ruling which rises to the level of reversible error. Appellant's fifth point of error is overruled. In his sixth point of error, appellant asserts the court erred in admitting the entire transcription of the telephone calls between defense counsel and Montgomery. Appellant contends the rule of "optional completeness" is not applicable to the instant facts. Rule 107 provides: When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation, writing or recorded statement is given in evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. "Writing or recorded statement" includes depositions. (Emphasis added). Under cross-examination, Montgomery answered in the affirmative when asked if appellant was outside the store when he first saw him. Montgomery was then asked about the truthfulness of the statement he made on the telephone relative to seeing appellant leave the store. The witness answered that his statement over the telephone was not true. In reply to counsel's question as to whether he admitted making the statement, Montgomery stated, "If I did, I did." Appellant contends that the witness failed to make an unequivocal admission and is subject to impeachment. Appellant offered that portion of Montgomery's telephone conversation relating to appellant's leaving the store. The telephone calls, as reflected by the transcription, are brief and concern only the events surrounding appellant's detention. It appears the second call followed shortly after the first conversation. Without identifying himself as appellant's attorney, counsel called Montgomery and asked him what happened on the occasion in question. The pertinent portion of Montgomery's reply was that he and Lewis "were watching [appellant]. And he filled up a basket full of groceries and he proceeded to go out of the store without paying for them. . . . When we first approached him he was outside the store." We find the transcription admitted into evidence relates to events surrounding the detention of appellant, constitutes "the whole on the same subject," and places the portion offered by appellant in its proper context. See Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988). Appellant further urges that evidence offered under the justification of the optional completeness rule may be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Crim. Evid. Ann. 403 (Pamph. 1992). Appellant suggests that the jury may have been prejudiced toward him since counsel did not divulge the fact that he was appellant's attorney when he called Montgomery. Appellant did not raise this objection in the trial court. Consequently, it is not preserved for review. Tex. R. Crim. Evid. 103(a)(1) (Pamph. 1992). Moreover, the matter of defense counsel not representing himself as appellant's attorney on the occasion in question was elicited during re-direct examination of Montgomery. Appellant's sixth point of error is overruled. In his seventh point of error, appellant asserts that the court erred in restricting the examination of appellant's character witnesses. The court permitted appellant's witnesses to testify as to appellant's reputation for honesty, but disallowed defense counsel's questions: "Is [appellant] a thief?" and "Do you have an opinion as to his character for stealing?" An accused may introduce evidence of his general good character about the particular trait involved in the offense charged. Canto-Davenport v. State, 751 S.W.2d 698, 700 (Tex. App. 1988, pet. ref'd). An information charging an accused with the offense of theft places the accused's reputation for honesty in issue. Bara v. State, 147 S.W.2d 250, 252 (Tex. Crim. App. 1941). However, questions of whether a witness believes the accused is a thief, or whether the witness has an opinion as to the accused's character for stealing do not come within the ambit of general good character about the particular trait involved in the offense. Appellant's seventh point of error is overruled. The judgment is affirmed. Tom G. Davis, Justice [Before Justices Powers, Jones and Davis*] Affirmed Filed: March 25, 1992 [Do Not Publish] * Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).