George Lee Bailey v. The State of Texas--Appeal from 362nd District Court of Denton County

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State: Texas

Court: Texas Northern District Court

Docket No: 10-97-00386-CR

Case Date: 10/14/1998

Plaintiff: George Lee Bailey

Defendant: The State of Texas--Appeal from 362nd District Court of Denton County

Preview:George Lee Bailey v. The State of Texas--Appeal from 362nd District Court of Denton County
George Lee Bailey v. State /**/ IN THE TENTH COURT OF APPEALS

No. 10-97-385-CR & No. 10-97-386-CR

GEORGE LEE BAILEY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 372nd District Court Denton County, Texas Trial Court Nos. F-94-1359-D & F-94-1360-D OPINION

Cause No. 10-97-385-CR (Trial Court No. F-94-1359-D) is an appeal by Appellant Bailey from his conviction for aggravated robbery (enhanced by two prior convictions), for which he was sentenced to life in the Institutional Division of the Texas Department of Criminal Justice and fined $10,000. Cause No. 10-97-386-CR (Trial Court No. F-94-1360-D) is an appeal by Appellant Bailey from his conviction for aggravated kidnaping (enhanced by two prior convictions), for which he was sentenced to life in TDCJ-ID and fined $10,000. The cases were tried together. There is one reporter s record and the briefs are identical.

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Rafael Ramirez, the victim, on the night of October 19, 1994, drove his 1986 Mercury Couger to the Jonathan s Bar parking lot looking for his girlfriend s car. Appellant and Michael Duhon approached Ramirez and asked him to drive them to a store to buy beer and cigarettes. They told Ramirez they would pay for his gas. On the way Appellant asked Ramirez if he knew where they might buy some marihuana. Ramirez did know of a person who sold marihuana who lived where he lived. He drove them to his apartment complex, but they were unable to buy any marihuana. Then Ramirez drove them to a second apartment complex so they could get the money to pay him for his gasoline. Appellant went into an apartment and returned with a handgun and ordered Ramirez to get in the back seat of his car. Appellant took the wheel and ordered Ramirez to lie flat on the back seat. They drove around, beat Ramirez with the handgun, robbed him of his clothes, jewelry and shoes. They then drove to a deserted field and beat him some more. Appellant then shot Ramirez through the chest and left him for dead on the ground. Ramirez was able to get up and staggered to a house belonging to James Brown where he collapsed on the front porch. Brown called 9-1-1 and Ramirez was taken to the hospital where he stayed for several days. After leaving Ramirez, Appellant and Duhon returned to their apartment where they divided up Ramirez s property, talked about what they had done in front of Chris Houser, who later called Crime Stoppers and reported what he had heard. The police found Ramirez s property in Appellant s apartment and also found that Appellant had sold Ramirez s 1986 Mercury Couger to a lady named Audrey Jennings. Appellant was indicted for aggravated robbery and for aggravated kidnaping (with two prior felony convictions alleged for enhancement). Appellant pled not guilty to the two charges and true to the enhancement paragraphs. The jury convicted him of both aggravated robbery and aggravated kidnaping, found the enhancements to the true, and assessed him life in TDCJ-ID and a $10,000 fine in each case. Appellant appeals on four identical points of error in each case. Point 1: The trial court erred in denying Appellant s motion for an eyewitness expert. Prior to trial Appellant s counsel filed a motion for the appointment of an Eyewitness Expert. A hearing was held on this motion where Appellant presented no evidence. Counsel for Appellant stated: The key issue in this case is whether or not an eyewitness can specifically identify this young man as the perpetrator of these crimes. Will state for the record that I believe that he had problems with a photo lineup and also some problems with an actual lineup. Because this individual is indigent we request the court to appoint an eyewitness expert.

The trial court overruled the motion. At trial the victim, Rafael Ramirez, identified Appellant as one of the two men who robbed and kidnaped him on October 19, 1994. He testified that he tentatively picked out Appellant from a photo lineup and again out of a live lineup. At the time he picked out Appellant from the live lineup he stated he was 70% to 80% sure of his choice. Appellant was arrested wearing some of the items stolen from Ramirez. Appellant also sold Ramirez s automobile to Audrey Jennings on October 21, 1994. Two witnesses testified they observed Appellant with property, later identified as belonging to Ramirez, on the evening of October 19, 1994. The necessity for an appointment of an expert to assist an indigent defendant in the preparation and trial of his case depends upon whether he has made a sufficient threshold showing of need for the expertise of such an expert. The type of expert requested is relevant to the determination of whether the trial was fundamentally unfair without the expert s assistance. The nature of an expert s field and the complexity of the issues will bear directly upon whether the appointment of an expert will be helpful. Such an appointment is only required in cases where a defendant has made a sufficient threshold showing that not only does there exist a reasonable probability that an expert would be of assistance but also that denial of expert assistance would result in a fundamentally unfair trial. Ray v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995); Norton v. State, 930 S.W.2d 101, 107 (Tex. App. Amarillo 1996, pet. ref d).
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Appellant presented no evidence on his motion. He did not present any affidavits in support of his motion. Appellant did not make the required threshold showing of need and thus the trial court did not err in denying his motion. Point 1 is overruled in each case. Point 2: The trial court erred in admitting photographs of the victim s injuries. The victim, Rafael Ramirez, testified regarding the robbery and kidnaping. He described the wounds and injuries he received. Deputy Gray testified that he observed Ramirez at the hospital during the early morning of October 20, 1994, and took photographs of his injuries. At trial seven photographs were admitted over Appellant s objection. Appellant asserts the photographs were cumulative and that their probative value was outweighed by their prejudicial impact. The admissibility of photographs is within the discretion of the trial judge. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex. Crim. App. 1991); Tex. R. Crim. Evid. 403. Rule 403 favors the admission of relevant evidence and presumes that relevant evidence will be more probative than prejudicial. Etheridge v. State, 903 S.W.2d 1, 20 (Tex. Crim. App. 1994); Long v. State, 823 S.W.2d 259, 270-73 (Tex. Crim. App. 1991). The photographs in this case reflect seven wounds on the victim s body. Each reflects a different view of the injuries received by the victim. The photographs depict only the reality of the crime committed, which was brutal. The trial court did not abuse its discretion or err in admitting them. Point 2 is overruled in each case. Points 3 and 4: The trial court erred in admitting Appellant s pen packets in the State s case-in-chief. Appellant testified and told the jury he had been convicted of burglary, robbery, credit card abuse, theft and several more convictions. When asked whether he sold the victim s car to Ms. Jennings on October 21, 1994, he denied doing so. Ms. Jennings had previously testified that Appellant sold the car to her and that she made a record of the transaction and that Appellant signed such document in front of her. Appellant denied signing the document which had been received in evidence. The prosecutor then showed Appellant the pen packets here involved and asked him if his signature was on same. Appellant affirmed that it was. The prosecutor then moved for the admission of the pen packets so that the jury could compare the signatures on them with the signature on the document evidencing the sale of the car to Ms. Jennings. Appellant objected that the exhibits were irrelevant with the exception of the signature. The exhibits were admitted into evidence. When an exhibit contains both admissible and inadmissible material, the objection must specifically refer to the material deemed objectionable. Appellant did not specifically identify the portions of the document to which he objected. The objection was therefore not sufficient to preserve the issue for review. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985); Hernandez v. State, 599 S.W.2d 614 (Tex. Crim. App. 1980). Moreover, in view of Appellant s testimony that he had been convicted of burglary, robbery, credit card abuse and several more offenses, the matter, if error, was harmless. Tex. R. App. P. 44.2(b). Points 3 and 4 are overruled in both cases. The judgments in the cases are affirmed. FRANK G. McDONALD Chief Justice (Retired)

Before Chief Justice Davis, Justice Cummings and

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Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed October 14, 1998 Do not publish

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