Paulus v. State

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission to a panel of this court, the majority concluded the evidence is insufficient to sustain the conviction and ordered the judgment reformed to acquit the appellant.

The majority of the court sitting en banc on rehearing now finds the evidence sufficient to sustain the conviction. This writer’s dissenting opinion on original submission to the panel is now adopted as the majority opinion for the en banc court with regard to the sufficiency of the evidence question.

There are, however, other grounds of error that must now be considered.

Appellant contends that she was denied a fair trial when the court allowed the prosecutor to show through the testimony of her daughter prior acts of misconduct and extraneous offenses on her part.

Specifically appellant complains of Mary Paulus Wood’s testimony, upon being recalled, that appellant had her committed to the psychiatric ward of a hospital to prevent her from getting married, that the appellant waved a pistol around during a hospital visit, that appellant forced her into prostitution at the age of four, that business properties of her father and the appellant were houses of prostitution, and that appellant used to pick up her husband’s bookie bet money, and Wood and her husband were threatened. The State contends this ground of error is multifarious and presents nothing for review. See Rodriquez v. State, 530 S.W.2d 944, 945 (Tex.Cr.App.1975).

Mary Paulus Wood was called by the State and testified that appellant knew Ash Robinson and to other facts mentioned in the discussion of the sufficiency of the evidence discussed earlier. On cross-examination appellant’s counsel elicited from Wood that she had “a falling out” with her mother and had not seen or tried to contact her mother for several years, that she had filed a lawsuit “against her mother” concerning her father’s estate. On re-direct examination the State established that as a result of the “falling out” inquired about Wood left home, and the reason was “mainly one.” Appellant’s objection to further interrogation was sustained when the State made known to the court that it intended to show that the “falling out” occurred because Wood wanted to get married, angering her mother, and because her mother had forced her into prostitution. The State then rested.

The appellant then called Diane Setteg-est. When asked on direct examination when she last saw Wood, she answered, “Before she decided to take up the profession of prostitution. It was sometime in 1968,1 believe.” The State’s objection was sustained, and the witness was admonished to answer the questions and not to volunteer anything. On cross-examination, without objection, the State established that Settegest knew that Wood was a prostitute and that she knew the Pauluses had rent property in Galveston. She denied knowing the property involved houses of prostitution or that the Pauluses received money from gambling, or that the Pauluses sought Mary after she left home for the purpose of eliminating her and Larry Wood. On re-direct examination appellant’s counsel established Settegest knew that the Pauluses had Mary committed to a psychiatric ward and she escaped to marry Larry Wood. She denied that the appellant had forced Mary into prostitution at age four as implied by the State, or that appellant’s efforts to find her daughter after her escape were to have her killed. On recross-examination Settegest acknowledged she had recommended a psychiatrist to the Pauluses for Mary before she was committed, and the psychiatrist was a friend of the Hills and the Robinsons.

*848Prior to the recall of Mary Wood, the appellant, out of the jury’s presence, objected to the State eliciting from her evidence that she (appellant) allowed men to fondle her (Wood) when she was four years old. The objection was overruled, and counsel was instructed to object to each question asked by the prosecution. The court permitted, however, appellant’s counsel to simply say during the upcoming interrogation, “I object,” saying it would understand the basis of the objection being the same as then being urged.

Mary Wood, recalled by the State, testified without objection that she had been committed to St. Joseph’s Hospital to keep her from getting married to Wood, who was 10 years older; that she was told if she could prove she wasn’t on heroin she could get married. She discovered she was confined. Again, without objection, she testified appellant came to visit her and was waving a pistol around in the room, and it was taken from her by the nurses. Wood never knew her mother to be without a pistol. She testified in the past prostitution was a source of her income, and she had engaged in sexual activity since the age of four years at her mother’s encouragement. When asked with whom she entered into such activity, appellant’s counsel stated, “The Court does understand that my objection does go to this entire line of questioning?” The court responded, “All right.” The objection came after the above stated evidence was already in the record. Wood then testified that the man was in his 60’s when she was four years old, and that the sexual activity continued until she was 12 or 13 years old when the man died, and that at about 16 years of age she began to get calls and her mother often answered the phone and made the dates. Appellant’s objection to this “entire line of questioning” was sustained. No further relief was requested. Over objection that the questions were leading and suggestive and an objection to the “line of questioning,” Wood was permitted to answer her mother told her who called and where she was supposed to be. Wood testified she went with appellant to Galveston to collect rent and “rob” juke boxes, that she knew the properties on Post Office Street were houses of prostitution, that she often went once a week to Galveston when she was in St. John’s school. The objection to this interrogation was general in nature. “... how long do these lies have to go on?”

Then Wood testified she often accompanied her mother to pick up her father’s bookie bets at news stands and at the Auditorium Hotel in Houston. Only after this evidence was in the record the objection was again to “this entire line of questioning.” Thereafter, the witness testified that “Daddy” quit booking horses and sports when she was about 14 years of age. Then, without objection, she testified after her marriage there were acts of violence directed to her and her husband and they left Houston.

An examination of the record shows that the matters of which appellant complains came into evidence without objection or that the objection was tardy, coming only after the evidence was before the jury, Stutes v. State, 530 S.W.2d 309, 311 (Tex.Cr.App.1975); Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976), or that the objection was general in nature preserving nothing for review, Williams v. State, 549 S.W.2d 183 (Tex.Cr.App.1977), or if the objection was sustained no further relief was requested. Further, some of the matters complained of were already in evidence as a result of the interrogation of the witness Settegest. Appellant’s ground of error is overruled.

Appellant also contends the court erred in allowing the prosecutor to prejudice the jury with improper questions concerning the bad character of her husband and associates. Attention is directed to the cross-examination of the appellant. Complaint is made of the fact the prosecutor asked if the rooming houses on Post Office Street in Galveston which appellant had owned for *849years were not whorehouses, whether her deceased husband had not received income from gambling enterprises, whether her husband was a bookmaker, and whether he was investigated for that activity from time to time. Complaint is also made about an inquiry if Bill McDonald (who introduced McKittrick to appellant) had not met a rather sudden demise in East Texas prior to trial.

The State argues that the ground of error is multifarious, and it is difficult to separate the contentions so as to determine whether the appellant is urging each individual question constituted reversible error or whether the combined effect of the prosecutor’s questions should cause reversal. The State contends nothing is presented for review. Rodriquez v. State, 530 S.W.2d 944, 945 (Tex.Cr.App.1975).

As to the inquiry about McDonald, the record reflects the question was never answered, the objection was sustained and the jury was instructed to disregard, although the mistrial motion was overruled. With regard to the question of investigations, the question was never answered and the court sustained the objection and ordered the prosecution not to proceed with that line of interrogation. No reversible error is presented regarding these questions.

Prior to the question about the Galveston rent property being whorehouses, appellant testified that she was a widow at the time of trial, had sent her daughter to St. John’s school, had been a Brownie leader, etc., and that her life style was different from that of McKittrick, whom she suspected and then later knew to be a prostitute. The question was asked and denied before an objection was offered that the same was an “absolutely improper suggestion by the prosecutor.” The objection was overruled. We observe that the objection is not the same now urged on appeal. Nothing is presented for review.

The State’s questions about whether appellant’s husband received income from gambling enterprises and was a bookmaker were denied by the appellant and such interrogation was permitted over objection that appellant was not on trial for what her husband may have been during his lifetime. Appellant cited Gant v. State, 513 S.W.2d 52, 53 (Tex.Cr.App.1974). One may not be impeached by the character of her on his associates. Gant v. State, supra; Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975). The court here erred in allowing questions about appellant’s husband receiving income from gambling enterprises and being a bookmaker. In view of the denials by appellant and the subsequent testimony by Mary Wood and other facts and circumstances, we cannot conclude, however, the error is such as to call for the reversal.

Appellant further urges the “trial court erred in refusing to quash the indictment which was not signed by the foreman of the grand jury” as required by Article 21.02, V.A.C.C.P. Appellant contends the trial court erred in overruling her motion to quash the indictment.

A stipulation offered at the hearing on the motion to quash by the appellant and agreed to by the State shows that the foreman’s signature on the indictment was a facsimile signature affixed by a rubber stamp. Appellant takes the position that this is tantamount to no signature at all, and briefs the contention as if the indictment had not been signed by the foreman. We cannot agree. The use of a stamp producing a facsimile of an original signature in signing legal documents has been upheld by this court. Estes v. State, 484 S.W.2d 711 (Tex.Cr.App.1972); Parsons v. State, 429 S.W.2d 476 (Tex.Cr.App.1968); Ex parte Britton, 382 S.W.2d 264 (Tex.Cr.App.1964); Ex parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961); Stork v. State, 114 Tex.Cr.R. 398, 23 S.W.2d 733 (Tex.Cr.App.1929). See also Brooks v. State, 599 S.W.2d 312, 322-323 (Tex.Cr.App.1979); Huff v. State, 560 S.W.2d 652 (Tex.Cr.App.1978).*8501 Since there is nothing in the record which would support a conclusion that the grand jury foreman did not actually place his signature on the indictment or authorize the same to be done, there is no error. Appellant’s contention is overruled.

In a supplemental brief appellant contends the court erred in admitting into evidence the fruits of an unlawful search of her home. Appellant urges the court erred in overruling, after a hearing, her motion to suppress such evidence.

The evidence at said hearing shows that about 3:15 p. m. on April 25, 1973, Houston police officers, an assistant district attorney and a district attorney’s investigator went to the Corley Myers home at 3024 Pine Gulley to execute a capias issued for appellant following her indictment. They had been informed Stanley “Snapper” Miles, known to them to be a violent individual, would be on the premises. Several officers had rifles and shotguns. Officer Jerry Carpenter testified he rang the door bell and was admitted by Corley Myers, who allowed the officers to enter. Carpenter found appellant sitting on a couch and informed her that she was under arrest for accomplice to murder and read her “Miranda ” 2 rights to her. In a search of the immediate area two pistols and a quantity of marihuana were found. Miles was not at the house.

Carpenter transferred appellant to his police vehicle and asked if there were any reasons they could not search her home at 3654 Underwood, and received “No” for an answer. On the way to said address, assistant district attorney Bob Bennett prepared a written form of consent to search which was signed by the appellant. Pursuant thereto a search was conducted at appellant’s home resulting in the finding of a blank check with a message written thereon and the other slips of paper discussed previously.

Appellant testified the officers rushed into the Myers house asking “Where’s Snapper?”; that Carpenter pointed a rifle at her; that she was not told she was under arrest, and was not given an opportunity to call a lawyer. She related she was handcuffed, placed in a police vehicle and told that they were going to her house to see if Snapper was there. She was not told, she claimed, that she had a right to refuse to consent to a search of her house and didn’t think she had such right.

The State acknowledges there was no search warrant, but relies upon written consent to search executed by the appellant.

It is well settled that when the State relies on a consent to search the burden of proof is on the prosecution to show the clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972); Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976). The prosecution must show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied. The burden is not discharged if the prosecution does not show more than an acquiescence to a claim of lawful authority. Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972). Whether the consent relied upon is a valid one is determined from the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Paprskar v. State, supra.

The appellant acknowledged that she signed the consent form, but claimed it was in a “coercive atmosphere.” The record shows the officers had a capias for appellant’s arrest that she was informed of the accusation against her, that she was given the “Miranda ” warnings. Subsequently while on the way to her home with the *851officers, assistant district attorney Bennett prepared the consent form and read it to the appellant. She then signed it.

It is true that at the time she was under arrest, but that fact does not preclude a free and voluntary consent to search from being given. Weatherly v. State, 477 S.W.2d 572 (Tex.Cr.App.1972); Bennett v. State, 450 S.W.2d 652 (Tex.Cr.App.1969); Valerio v. State, 494 S.W.2d 892 (Tex.Cr.App.1973); Potts v. State, 500 S.W.2d 523 (Tex.Cr.App.1973); Armstrong v. State, 550 S.W.2d 25, 32 (Tex.Cr.App.1976). And there is no requirement that a person be informed of his right to refuse to consent before consent can be held to be free and voluntary. DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971); Armstrong v. State, supra.

The validity of appellant’s consent is a question of fact to be determined from the totality of the circumstances. Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975). The trial judge was the trier of the facts, the judge of the credibility of the witnesses and the weight to be given their testimony at the hearing on the motion to suppress evidence. Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975); Ribble v. State, 503 S.W.2d 551 (Tex.Cr.App.1974). The State’s testimony supports the trial judge’s conclusion that the consent was freely and voluntarily given. The court was entitled to reject all or any part of appellant’s testimony pertaining to the “coercive atmosphere” and the conduct of the officers. Draper v. State, 539 S.W.2d 61 (Tex.Cr.App.1976); Adams v. State, 537 S.W.2d 746 (Tex.Cr.App.1976). The court did not err in overruling the motion to suppress or in admitting the fruits of the search into evidence.

The State’s motion for rehearing is granted; the judgment is affirmed.

ROBERTS, CLINTON and TEAGUE, JJ., dissent.

. The use of facsimile signatures in widespread and recognized by law. See, e.g., Uniform Facsimile Signatures of Public Officials Act. Article 717j-l, V.A.C.S.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).