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June 26, 1991


From the 251st Judicial District Court of Potter County; No. 26,643-C; Honorable Michael T. McSpadden, Judge.

Charles L. Reynolds, C.j., and Dodson and Boyd, JJ.

Author: Reynolds

A jury convicted appellant Jane Ada Callaway, charged with causing the death of Judy Woods Saragusa, of capital murder, but at least ten jurors had a reasonable doubt that there was a probability she would commit criminal acts of violence that would constitute a continuing threat to society. Pursuant to article 37.071(e) of the Texas Code of Criminal Procedure (Vernon Supp. 1991), the trial court sentenced her to confinement for life in the Texas Department of Corrections.*fn1

Seeking a reversal of her conviction on twenty-one points of error, appellant contends that:

(1-2) The trial court abrogated her right to cross-examine adverse witness Michael Saragusa;

(3-4) The trial court erred in overruling her motions for mistrial upon introduction of, and for an instruction to disregard evidence concerning, an extraneous offense;

(5) The trial court erred in sustaining the State's objection regarding her testimony of conversations she had with the deceased;

She was denied due process by (6) the trial court's refusal to disclose, and (7) the State's suppression of exculpatory evidence, and by (8) the State's suppression of its plea agreement with Marion Eugene Scranton;

(9) She was denied a fair trial by the prosecutor's suppression of exculpatory evidence concerning her relationship with Michael Saragusa;

(10-11) The trial court erred in overruling her objection to Michael Richardson's testimony regarding the extraneous offense of solicitation of capital murder;

(12) The evidence is insufficient to corroborate the accomplice witness testimony of Michael Richardson;

(13) Her right to a fair trial was abrogated by intentional misconduct of the State;

(14) The State's suppression of Brady material, intentional disregard of the trial court's instructions, and investigation of defense attorneys and investigators abrogated her constitutional right to counsel;

(15-18) The trial court erred in overruling her motion to suppress evidence based upon her arrest;

(19-20) She was denied due process by the systematic exclusions of Hispanics on the jury panel; and

(21) She was denied equal protection of the law by the State's arbitrary decision to selectively prosecute her for capital murder when other persons similarly situated were prosecuted only for murder.

On the rationale expressed, we will overrule the points of error and affirm the judgment of the trial court.

A voluminous record, highlighted by counsels' extensive briefings, reveals the State alleged, and marshaled its evidence to show, that on or about September 2, 1987*fn2 appellant, through the employment of Leon Hawkins, Jr., caused the death of Judy Woods Saragusa, who resided with her husband, Michael Saragusa, in Houston. The Saragusas owned a yacht sales company, the Marine Group, and Michael Saragusa was an executive vice-president and 50% owner of Quality Beverage Company.

Saragusa hired appellant as a secretary at Quality Beverage on January 26th. Because appellant was a good secretary, her salary was increased and she eventually assisted Saragusa with his personal finances. During her employment, appellant and Saragusa had an affair, the length and intensity of which were disputed.

By virtue of her employment, appellant became acquainted with Judy Saragusa. Michael Richardson testified that on several occasions, appellant solicited him to kill a lady, who it developed was Judy Saragusa, but he refused. At appellant's request, he picked up $20,000 at appellant's bank, and delivered it to appellant. Shortly afterwards, appellant gave Richardson two envelopes, one containing $10,000 he was to hold, and the other to be given to Marion Eugene Scranton, who, Richardson knew, was supposed to kill some lady. Richardson looked inside the envelope he was to give Scranton and saw a green piece of paper with the address 5005 Greentree, the Saragusas' address, written on it. When, at Scranton's request, Richardson told appellant that Scranton was not going to do anything like that, appellant told him that she would pay his brother, Leon Hawkins, Jr., to kill the lady.

On August 28, Richardson and Hawkins went to appellant's house. Richardson observed appellant give Hawkins a gun and show him a picture of the person she wanted him to kill. The photograph was recovered from appellant's house and a witness identified one of the people in the picture as Judy Saragusa. Appellant then drove Richardson and Hawkins to and pointed out the house where the Saragusas resided. The next day, Hawkins told Richardson that appellant had offered him $50,000.00 for killing a lady.

On September 1, Richardson drove Hawkins to Quality Beverage for the purpose of obtaining appellant's car. Richardson and Hawkins went inside to appellant's desk, and appellant accompanied them outside, where she gave Hawkins some keys and an envelope. Hawkins went to, entered, and started appellant's maroon Cadillac.

On September 2, Craig Nimer, a security guard, was patrolling the neighborhood where the Saragusas resided when he observed a black man driving a maroon or burgundy Cadillac. At about 4:30 p.m., he observed Judy Saragusa drive by in her Jaguar and they waved to each other. Shortly thereafter, Nimer observed the Cadillac headed in the direction of the Saragusa home. Nimer then walked to the Saragusa driveway and observed the Cadillac, bearing the license plate number that was on appellant's Cadillac, parked next to Judy Saragusa's Jaguar.

As Nimer returned to his patrol car, he heard what he believed was a gunshot. Going back towards the Saragusa house, he saw the Cadillac pull out of the Saragusa driveway. Nimer later identified Hawkins as the man he had seen in the Cadillac on the day of the murder.

Nimer and Ledet, another security officer, subsequently entered the home and found Judy Saragusa's body. It was later determined that the cause of death was a gunshot wound to the deceased's right ear.

On September 4, Hawkins was interviewed by the Houston Police Department. Recovered from Hawkins was a Continental Airlines' ticket envelope bearing his fingerprint and containing a plane ticket used for an 8:40 p.m. flight on September 2 to San Francisco, which was shown to have been purchased by appellant in the name of "Tony Brooks." He also possessed the keys to appellant's Cadillac, which was located in the parking garage of the airport where Hawkins' ticketed flight was scheduled to depart. The fingerprints of Hawkins and his common-law wife, Benedetta Little, were discovered on the outside of the automobile.

After interviewing Hawkins, several Houston policemen went to his residence, where they met Little. She had found a gun hidden in the mattress of their bed, removed it, and hid it under a porch of a nearby house. She took the officers to the house, where they recovered a .22 caliber pistol from under the porch.

The pistol, so the firearms examiner determined, fired the bullet recovered from the deceased's body. This gun was purchased by appellant's ex-husband, Charles Beaschler, and given to Hawkins by appellant, who admitted that the gun looked exactly like the one Beaschler had purchased for her.

Appellant's first- and second-point-of-error contentions of an abrogation of the right of cross-examination of Saragusa are grounded on an event occurring during his cross-examination. He was questioned about his relationship with Ronald C. Martin, an ex-employee of Quality Beverage to whom Saragusa had made an unpaid loan and who had visited in Saragusa's office. When Saragusa was asked whether, after the visit, he had contacted any member of the Houston Police Department about his business, the prosecutor requested an ex parte conference with the court. Defense counsel interposed no objection to the conference; he only asked if the conference would be put on the record, and the court replied that it would be sealed.

In chambers, in the absence of appellant and her counsel, the prosecutor informed the court that when it appeared to the district attorney's office that private investigators for the defense had approached, and offered to purchase testimony of, witnesses, an investigation was launched. Martin, whose real name is Ronald Coleman Morton, had been invited to and, wearing a tape recorder, did meet with a defense investigator, who did not approach an impropriety of buying testimony. A future meeting was indicated, with Morton being asked to think about whether Saragusa engaged in specified activities. Then, Saragusa took Morton to the district attorney's office. The prosecutor suspected that the ex parte conversation would alert the defense to the on-going investigation and, to preserve its integrity, proposed to the court that "certain areas," which did not directly affect the credibility of Saragusa, needed to be excluded from cross-examination. Therefore, he suggested that the prosecution "might need to make an objection and ask the Court to rule on it in that light."

Following the ex parte conference, appellant's cross-examination of Saragusa continued for the remainder of the day's proceedings. He was asked a number of questions about Morton's hiring, job tasks, and employment record. The prosecution made no objection to any question on the ground that it pertained to any matter mentioned during the ex parte conference.

On the following morning, and before the cross-examination of Saragusa continued, appellant moved the court to make her aware of the in camera hearing, stating that effective cross-examination of Saragusa was impaired if she does not have access to the same information that the prosecutor had. The court denied the request.

After sentence was imposed, appellant filed her motion for new trial, alleging that her right to a fair trial was abrogated by the court's failure to divulge the contents of the ex parte communication. At the hearing on the motion, the court ordered the ex parte hearing transcribed and disclosed to appellant's counsel, but denied the motion for new trial. Appellant filed her notice of appeal.

Following receipt of the transcription, appellant filed a supplemental motion for new trial and a motion to reconvene the hearing on her motion for new trial. In her supplemental motion, appellant asserted that her right to effective assistance of counsel and a fair trial was abrogated by the State's investigation and requested that a hearing be granted. At the hearing on the motion, the court denied her motion to reconvene the hearing, but permitted defense counsel to state on the record the basis for the motion.

Defense counsel's statement articulated five major beliefs. He believed the evidence would show that investigators for Saragusa were investigating investigators of the defense's trial counsel; that the representations made to the court were inaccurate; that the investigators for the district attorney's office and Saragusa were attempting to hinder the investigation of defense counsel and his investigators by intimidating them, intimidating witnesses, and trying to influence witnesses not to testify; that the actions of Saragusa in investigating the defense were an attempt to shield himself from the State's investigation; and that the information from the ex parte hearing should have been made available for cross-examination so that the defense could have established Saragusa's bias and to show that he was an active participant rather than simply the husband of the deceased.

On appeal, appellant, asserting that the trial court should not have agreed to hold the ex parte conference requested by the State, contends that her right to cross-examine Saragusa was abrogated by the State's intentional decision not to inform the defense of the unsuccessful attempt of Saragusa to initiate a criminal investigation of defense counsel and their investigators. As a result, she declares, Saragusa was allowed to withhold material evidence from the jury, and to shade evidence concerning his involvement with potential witnesses, herself, and ultimately, his involvement in his wife's death.

At the threshold of the consideration of appellant's first two contentions, it is observed that by not objecting to the ex parte conference and thereafter proceeding with the trial, appellant cannot fault the court for holding the conference. Satterwhite v. State, 499 S.W.2d 314, 316 (Tex.Cr.App. 1973). Nor is appellant in a position to fault the court for not disclosing the contents of the ex parte conference. Since the request for the disclosure was not made at the earliest opportunity, it came too late to preserve any error. Cisneros v. State, 692 S.W.2d 78, 82 (Tex.Cr.App. 1985). And, although the record indicates that defense counsel was informed of the contents prior to the hearing of the motion for new trial,*fn3 the attempt to predicate error on the record developed after the supplemental motion for new trial was filed is unavailing. Being filed after the motion for new trial was overruled and notice of appeal was filed, the supplemental motion was untimely. Tex. R. App. P. 31(a)(2). Thus, the record developed in connection therewith is not properly a part of the record on appeal. Heckathorne v. State, 697 S.W.2d 8, 10 (Tex.App.--Houston [14th Dist.] 1985, pet'n ref'd).

Nevertheless, because of the unusualness of the ex parte conference, the record has been reviewed to determine whether injury was shown, or whether there are facts from which injury can be inferred, to result to appellant from the conference so as to mandate a reversal. Mares v. State, 571 S.W.2d 303, 307 (Tex.Cr.App. 1978). In doing so, it is noticed that appellant's right to cross-examine Saragusa about Morton was not curtailed as a result of the conference, there being no objection by the prosecutor based on the subject matter of the conference. Indeed, in the cross-examination of Saragusa covering over 700 pages of the statement of facts, defense counsel, in addition to thoroughly exploring Saragusa's relationship with Morton, established that: Saragusa had not spoken to anyone representing the accused outside of court, had visited with the prosecutor extensively about his testimony prior to trial, had given a written statement to the police, had hired a criminal defense attorney to represent Quality Beverage in the proceeding, had recorded telephone conversations with the accused after his wife's death in an effort to establish appellant's guilt, had consented to a search of his office, had turned over letters purportedly written and sent to him by appellant after the murder, and had referred to appellant as "that woman" and a liar.

Given these circumstances, there was manifested to the jury the full range of defense counsel's expressed belief of Saragusa's involvement--his relationship with Morton, the extent of his active participation in the investigation, and his bias. Then, the circumstances show neither injury nor the inference of injury to appellant, since the presence of appellant and her counsel at the conference would not have added anything substantial to the opportunity to defend. Id. The first two points of error are overruled.

By her third- and fourth-point contentions of error, appellant faults the trial court for overruling her motion for mistrial when the State introduced an extraneous offense alleged to have occurred on June 22, without proving a nexus between her and the alleged perpetrator, and for overruling her motion to disregard the evidence when the court found no evidence linking her to the offense. An extended recitation from the lengthy record is necessitated.

Prior to trial appellant filed, and the court granted, her motion to prohibit the State from mentioning any extraneous offenses or acts of misconduct before approaching the bench. During his cross-examination, Saragusa recalled his loaning a Waltham .380 automatic pistol to appellant. In the ensuing examination to fix the time of Saragusa's acquisition of the weapon, the following is recorded:

Q. Wasn't it after the episode you told this jury about the other day?

A. Which episode is that, sir?

Q. Didn't you refer to an episode or an event that you didn't go into any detail about, but ...

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