COURT OF APPEALS
FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS
AT DALLAS
NO. 05-83-01318-CR
JOHN DONALD MASSOUD, FROM A DISTRICT COURT
APPELLANT,
V.
THE STATE OF TEXAS,
APPELLEE. OF DALLAS COUNTY, TEXAS
BEFORE JUSTICES STEPHENS, WHITHAM AND GUILLOT
OPINION BY JUSTICE STEPHENS
MARCH 4, 1985
John Donald Massoud, convicted by a jury of criminal
solicitation to commit aggravated robbery and sentenced to seven
years imprisonment, appeals. In ten grounds of error, appellant
contends that: (1) his conviction, after a prior mistrial,
constituted double jeopardy; (2) he was denied due process
because the prosecutor failed to disclose evidence, material to
guilt or punishment, after a discovery motion was filed; (3) the
trial court abused its discretion by surpressing evidence
material to the defense; (4) the trial court erroneously admitted
testimony of an extraneous offense or transaction; (5) the trial
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court erroneously permitted hearsay testimony to be elicited
during trial; (6) he was denied effective assistance of counsel;
(7) the indictment was fundamentally defective; (8) the evidence
was insufficient to sustain a conviction; (9) the court
erroneously stated the elements of aggravated robbery in its
charge; and (10) the court's charge improperly enlarged the
indictment. We disagree with each contention and, accordingly,
affirm.
In his first ground of error, appellant contends his
conviction is barred by double jeopardy. Although the record
reflects appellant orally moved for dismissal of the proceedings
on double jeopardy grounds, he failed to file a verified written
motion as required by TEX. CODE CRIM. PROC. ANN. articles 27.05
(Vernon Supp. 1985) and 27.06 (Vernon 1966). The question of
double jeopardy is therefore not properly before this court.
Murphy v. State, 669 S.W.2d 320 (Tex. Crim. App. 1983) en banc;
Galloway v. State, 420 S.W.2d 721 (Tex. Crim. App. 1967).
Appellant's first ground of error is overruled.
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In his second and third grounds of error, appellant contends
he was denied due process because evidence material to the issues
of his guilt or punishment was not disclosed in accordance with
Brady V. Maryland, 373 U.S. 83 (1967). We disagree.
The evidence of which appellant complains consists of two
items. The first item is a recording of a telephone conversation
between Jerry Banks, the prosecuting attorney, and Bob Denson, a
private investigator who was employed by Bill Siefert, appel
lant's former partner, to obtain evidence for use in a civil
action brought by appellant against Siefert. The second item is
the Dallas Police Department's Internal Affairs file regarding
official misconduct of two Dallas police officers, Falgout and
Robertson. In response to appellant's request to review the
evidence, the prosecutor submitted these two items to the court
for an in camera inspection to determine whether they were
discoverable. The court found that the items did not contain
anything "exculpatory in nature or anything that would mitigate
punishment" and declined to permit discovery. We conclude that
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by submitting the evidence to the court for a judicial determina
tion of its discoverability, the prosecutor complied with the
requirements of Brady. See United States y_, Agurs, 427
U.S. 97 (1978) .
Having concluded the prosecutor's action did not violate
appellant's right to due process, we now consider whether the
trial court abused its discretion in denying appellant access to
the evidence. The standard of review we must follow is whether
the evidence sought is material to appellant's defense.
Whitechurch v. State. 650 S.W.2d 424, 425 (Tex. Crim. App.
1983), en banc; Ouinones v. State. 592 S.W.2d 933 (Tex. Crim.
App. 1980), en banc, c^rt. denied. 449 U.S. 893 (1980). In
determining materiality, the omission must be evaluated in the
context of the entire record and constitutional error is com
mitted only if the omitted evidence creates a reasonable doubt
that did not otherwise exist, whitechurch. 650 S.W.2d at 425.
After fully reviewing the evidence of which appellant com
plains, we conclude that, in light of the entire record,
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appellant was not denied access to any evidence material to his
defense. The file revealed that the two police officers had been
employed, contrary to police department policy, by Denson to
assist him in obtaining evidence for the civil trial between
appellant and Siefert. When the officers realized that a
criminal matter was developing, they immediately discontinued
their employment with Denson, and in fact refused to accept any
pay from Denson for the work already done. Banks did not learn
of the two officers' participation in the investigation of the
civil matter until he was preparing for trial. Immediately upon
learning of their involvement, Banks initiated a telephone call
to Denson, the taped telephone conversation in issue, verifying
the officers' involvement. He then consulted with District
Attorney Henry Wade and reported the matter to the Dallas Police
Department.
All of these matters were fully developed at trial, except
the fact that the telephone conversation shows that Banks and
Denson were acquaintances, and that Banks had in fact visited in
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Denson's home, socially, on one or more previous occasions.
Appellant contends that the undeveloped evidence is material
to show a conspiracy between Siefert and the district attorney's
office to "set-up" appellant. This contention is without merit.
First, Banks was not involved in the police investigation of
appellant's criminal activities and was unaware of the officer's
prior involvement in the civil case until he was preparing for
trial. Next, Banks' actions, after learning of the officer's
involvement, were inconsistent with appellant's allegation of a
conspiracy. Further, we note that this theory is different from
appellant's theory during trial. At trial appellant admitted his
conversations with Sergeant Amos, the police investigator in
charge of the criminal investigation, but denied any criminal
intent to harm Bill Siefert. He testified that he believed Amos
was working for Denson and that he was going along with Amos,
hoping to gather evidence against Siefert. As we have stated
previously, the excluded evidence showing the relationship
between Falgout, Robertson, Denson, and Siefert, as well as the
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evidence describing Amos' role in the investigation, was fully
developed at trial. There was never any question that Officers
Falgout, Robertson, and Amos were "setting-up" appellant in the
sense that they were working undercover to gather evidence to be
used against him. The issue, resolved by the jury against
appellant, was not whether Amos was actually a "hit-man," but
whether appellant possessed the requisite criminal intent, that
is, whether he actually believed Amos would harm Siefert.
Appellant's allegation of a conspiracy extending to the district
attorney's office is not only unsupported by the evidence, but is
immaterial to the question of that intent. Appellant's grounds
of error two and three are overruled.
In his fourth ground of error, appellant contends the court
erroneously permitted testimony of an extraneous offense or
transaction. Danny Wood testified that appellant attempted to
purchase dynamite from him and inquired whether two or three
sticks of dynamite wrapped in foam rubber was sufficient to blow
up a four to five thousand square foot building. He further
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testified that appellant told him he wanted the building
destroyed because the person who owned the building owed him
approximately five hundred thousand dollars. Wood was called as
a witness after appellant had testified and had affirmatively
denied his criminal intent, and had further denied making any
statements to Wood regarding purchasing dynamite or destroying a
building. Although evidence of extraneous offenses is generally
not admissible, the evidence in this case was admissible to show
intent or scheme, or to refute appellant's defensive theory.
Sewell v. State. 629 S.W.2d 42 (Tex. Crim. App. 1982);
Chambers v. State. 601 S.W.2d 360 (Tex. Crim. App. 1980).
Appellant's fourth ground of error is overruled.
In his fifth ground of error, appellant complains the court
erroneously permitted the introduction of hearsay evidence.
First, appellant contends the testimony of Joe McMurtrie is "full
of hearsay." No objection was made during trial, and, on appeal,
appellant fails to identify the specific testimony of which he is
complaining. Therefore, nothing is presented for review. Cook
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v. State, 611 S.W.2d 83 (Tex. Crim. App. 1981). Next, appellant
complains the tapes of conversations between appellant and Amos
were hearsay because the State failed to properly authenticate
the tapes. The record reflects that appellant's counsel
affirmatively waived objection to the introduction of the tapes
and that appellant later testified that he had no reason to doubt
the authenticity of any of the tapes. Error, if any, was there
fore invited, and now appellant may not be heard to complain.
_Ex parte Guerrero, 521 S.W.2d 613 (Tex. Crim. App. 1975).
Next, appellant complains that the testimony of Captain Oney
is "rank hearsay." Appellant cites no reference to the record
indicating where the error complained of occurred; therefore,
nothing is presented for review. Brown v. State, 605_ S.W.2d
572 (Tex. Crim. App. 1980). Further, Captain Oney testified only
during the punishment phase of the trial. Since the court
determined punishment, we must presume it disregarded any
inadmissible testimony. Keen v. State, 626 S.W.2d 309 (Tex.
Crim. App. 1981). Finally, appellant complains the entire
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testimony of Cheryl Jerome should be stricken from the record
because she is currently employed by the Dallas County Attorney's
office and her testimony was therefore in violation of the Texas
Code of Professional Responsibility. The record reflects that
Jerome was not employed by the District Attorney's office when
she testified in this case. Appellant cites no authority that a
person's testimony must never be considered if he or she later
becomes associated with one of the attorneys involved in the
litigation. We find none. Therefore, nothing is presented for
review. Brooks v. State, 642 S.W.2d 791 (Tex. Crim. App.
1982). Appellant's fifth ground of error is overruled.
In his sixth ground of error appellant contends that he was
denied effective assistance of counsel because his attorney
repeatedly failed to object to the introduction of "inadmissible
hearsay evidence and extraneous offenses." Appellant fails to
direct this Court's attention to the record indicating where
these omissions by counsel occurred; therefore, nothing is
presented on review. Cook, 611 S.W.2d at 87. Appellant's
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sixth ground of error is overruled.
In his seventh ground of error, appellant contends the
indictment is fundamentally defective because it fails to allege
all of the essential elements of robbery. We disagree. Upon
review of the indictment, we conclude that the indictment
adequately set out the elements of both criminal solicitation,
TEX. PENAL CODE ANN. Sec. 15.03 (Vernon 1974) , and aggravated
robbery, TEX. PENAL CODE ANN. Sec. 29.02, 29.03 (Vernon 1974).
See Rohlfing v. State, 612 S.W.2d 598 (Tex. Crim. App.
1981). Appellant's seventh ground of error is overruled.
In his eighth ground of error, appellant contends the
evidence is not sufficient to support a conviction. We disagree.
When the sufficiency of the evidence is challenged, the standard
of review is, viewing the evidence in the light most favorable to
the verdict, whether any rational trier of fact could have found
the elements of the crime beyond a reasonable doubt. Wilson v.
State, 654 S.W.2d 465 (Tex. Crim. App. 1983). During one of the
taped conversations between appellant and Amos, appellant told
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Amos he wanted Siefert's "right hand broke, his arm broke . . .
and . . . one leg broke." During a different conversation he
stated, "why don't you act like you're gonna rob this boy — make
it look good." He told Amos he wanted the business cards out of
Siefert's billfold, but that Amos could keep Siefert's watch,
rings, and any money. We conclude the evidence is sufficient to
support the conviction. Appellant's eighth ground of error is
overruled.
In his ninth ground of error, appellant contends the trial
court committed fundamental error by failing to instruct the jury
on the correct elements of aggravated robbery. We have reviewed
the definitions in the court's charge which appellant urges were
erroneous, and find no error. The court's omission of the word
"recklessly" and its further omission of the alternative element
of "intentionally or knowingly threatens or places another in
fear of imminent bodily injury or death," from the definition of
robbery, TEX. PENAL CODE ANN. §29.02 (Vernon 1974), benefitted
appellant by restricting the elements of the charge for which
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appellant could have been found guilty. Error, if any, was
therefore harmless. Since no objection was made at trial and
fundamental error was not committed, nothing is presented for
review. Henderson v. State, 117 S.W.2d 697 (Tex. Crim. App.
1981).
In his final ground of error, appellant contends the court's
charge has enlarged the indictment. We disagree. The indictment
alleges that appellant "did unlawfully, then and there with
intent that a felony of the first degree be committed, namely:
aggravated robbery, knowingly and intentionally request,
command, and attempt to induce another . . ." (emphasis
added). The court's charge tracks this language, however, it
omits the word "command", and substitutes the word "or" for the
word "and." The omission of the word "command" in the charge
restricted rather than enlarged the indictment. Error, if any,
caused by the court's omission, was therefore harmless. Further,
since appellant failed to object to the charge, nothing is
presented for review. White v. State, 610 S.W.2d 504 (Tex.
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Crim. App. 1981). Finally, it is not error for the indictment to
allege the different ways of committing the offense in the
conjunctive and for the jury to be charged disjunctively.
Vasquez v. State, 665 S.W.2d 484 (Tex. Crim. App. 1984) en
banc; Vaughn v. State, 634 S.W.2d 310 (Tex. Crim. App. 1982).
Appellant's final ground of error is overruled.
Affirmed.
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