author: McDonald, judge. MORRISON, Judge WOODLEY, Presiding Judge

text:
    Ex parte N. A. SMITH.
    No. 37109.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.

      Quinnan H. Hodges, Butler, Binion, Rice & Cook, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Carl E. F. Dally, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an original application for a writ of habeas corpus filed by relator with this Court wherein he seeks his release from custody after being held in contempt by Honorable D. F. Thompson, Justice of the Peace, Precinct- -No: 2 of Harris County, Texas, for -his refusal to testify at a court of inquiry convened by Judge Thompson.

We observe that the District Attorney has, since receipt of this application, joined in the prayer that the relief prayed for be granted and the relator discharged for the reason that he has since been indicted by the Grand Jury and has thereby become an accused in the matter under investigation by the court of inquiry at the time he refused to testify, and being an accused, relator may not now be required to testify before the court of inquiry and thus purge himself of contempt. It is evidently the position of the District Attorney that the matter before us in this cause is now a moot question since relator is now in no position to purge himself of contempt The writer feels that the question has not become moot, as we shall hereinafter point out, since the fine of $100.00 imposed by Judge Thompson was part of the punishment meted out for contempt and this unfulfilled portion of' the contempt-order is still unsatisfied. The writer does not agree that relator’s question is moot.

Prior to relator being summoned before the Court of Inqúiry, some thirteen witnesses had testified, their testimony reflecting that the city of Pasadena-had made a contract with its financial advisor, Merrill, Lynch, Pierce, Fenner and Smith which-provided for a 2% payment to that firm for its services, that the 2% was grossly in' excess of similar services provided for Cities of a comparable size of the' city of Pasadena; that in connection with the-contract, a certain city official, would designate a “local attorney” -to be paid one-half’ of .the sum, or 1% of the bond issue, by Merrill, Lynch, Pierce; Fenner and Smith;' that- relator was one of such designated-“local attorneys” and that relator received on at least one occasion a fee of- sixty, thousand dollars for legal' consultation „- on-that bond issue and other fees in connection with other-bond issues; that-the inference.- and questions of \the’ district attorney and, the answers of the witnesses reflected or attempted to reflect, that relator .had not provided services to earn such fee'; and that relator had “kicked back” or “paid back” certain of his said fees to certain-city officials of the city of Pasadena.

From the above testimony it seems clear that when relator was summoned, while not strictly under arrest, he was in technical custody and was under suspicion and was certainly in the category of a “suspect” in connection with wrongdoing in the municipal affairs of the city of Pasadena.

Further, all the proceedings were conducted in public, in a crowded courtroom and present throughout the proceedings were television cameramen, newspaper reporters and photographers.

When called to testify, relator was informed that he would he denied the right to he represented by counsel; denied the right to cross-examine the witnesses; denied the right to bring witnesses in his own behalf; would not be informed of the cause and nature of the offense being inquired into, and the proceedings were to be conducted as with prior witnesses, i. e., in public. Thereupon, relator refused to testify upon the grounds that his rights, privileges and immunities under the fifth, sixth and fourteenth amendments of the Constitution of the United States and under Art. 1, Sections 10 and 19 of the Constitution of the State of Texas, Vernon’s Ann.St., were being violated. Subsequently, relator was held in contempt, fined $100.00, taken into custody, and remanded to jail until his fine was fully paid, and he purged himself of contempt by testifying before the Court of Inquiry.

The Statute authorizing the Court of Inquiry here complained of is Article 886 of Vernon’s C.C.P. as follows:

“When a justice of the peace has good cause to believe that an offense has been, or is about to be, committed against the laws of this State, he may summon and examine any witness in relation thereto. If it appears from the statement of any witness that an offense has been committed, the justice shall reduce said statements to writing and cause the same to be sworn to by each witness making the same; and, issue a warrant for the arrest of the offender, the same as if complaint had been made and filed.”

We cannot agree with relator’s contention that said Article 886 is unconstitutional; however, we do conclude that its use in the instant case is unconstitutional due to the arbitrary and prejudicial abuse of this statute by the state.

In Smith v. State, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, the U. S. Supreme Court in construing our Texas grand jury statutes held that a statute may be capable of use consistent with “due process” and yet still, by its manner of use and construction, be used in such a manner as to deny “due process”.

It is our position that in the instant case relator was not yet a defendant as no charge had actually been preferred against him, but so much suspicion had been cast upon him by the testimony of other witnesses that it was obvious that an indictment would be sought against him, or a charge preferred. In fact, it appears to us that under the facts it was already incumbent upon the justice of the peace to issue a warrant for the arrest of relator under the mandatory provision of Article 886, which states:

“If it appears from the statement of any witness that an offense has been committed, the justice shall reduce said statements to writing and cause the same to be sworn to by each witness making the same; and, issue a warrant for the arrest of the offender, the same as if complaint had been made and filed.”

In Ex Parte Sauls, 46 Tex.Cr.R. 209, 78 S.W. 1073, a similar prosecution, this Court stated:

“Whenever a party is under arrest for a violation of the law, or is held by the authorities investigating a charge against him, the constitutional inhibition against compelling a defendant to testify against himself is opera-tlVC* ^ ^ 'K **

We further point out that Article 23 of the Vernon’s Ann.Texas Penal Code defines an “accused” as “ * * * any person who, in a legal manner, is held to answer for an offense, at any stage of the proceeding, or against whom complaint in a lawful manner is made charging an offense, including all proceedings from the order for arrest to the final execution of the law.” The use of the words “or against whom complaint in a lawful manner is made” in the foregoing statute makes it apparent that it is not essential that a ■complaint be filed or a warrant for arrest to issue for a person to be an accused.

While we do not find Art. 886 unconstitutional, we do feel the procedure used in conducting the inquiry was unconstitutional. As stated in 24 Am.Jur. 865, Sec. 47: ■

“ * * * The protection of the grand jury would amount to nothing if the citizen were first exposed to scandal .and disgrace by a public examination of the state in order to see whether he ought to be tried in public on a criminal charge, without any right on his part to examine the state’s witnesses, to offer to contradict them to prove their-bad character, or to be represented by counsel. * * * ”

Thus, concluding that relator has been placed in the position of an “accused” or “suspect”, it is incumbent upon the justice who convened the court of inquiry, to. conduct'said court in such a manner as to provide the procedural safeguards guaranteed an accused under Article 1, Sec. ■10 'of our State' Constitution and the fifth "and fourteenth amendments to the United States Constitution.

The State contends the procedures are justified and relies upon McClelland v. Briscoe, Tex.Civ.App., 359 S.W.2d 635, r. e. f., n. r. e. and Ex Parte Jimenez, 159 Tex. 183, 317 S.W.2d 189.

In McClelland, a civil case construing Article 886, reliance was had upon Ex Parte Jimenez. From a reading of the Jimenez case, it is apparent that it is not applicable to the case at bar and distinguishable as follows:

First, it is a civil case construing Article 9.02 of the Election Code, V.A.T.S. The act in that case in no sense constituted the commencement of a criminal prosecution as do Articles 886 and 887 in the instant case and the parties involved could not be considered as “accused” persons or as an “accused”.

Secondly, in Jimenez, no denial of due process was pointed out to the Court. In the case at bar, a denial of due process is involved.

Finally, the court in Jimenez was considering whether Article 9.02 of our civil statutes was free from a defect in its caption, contained a conflicting penalty provision, or violated free speech and did not approve the mode of procedure practiced in the case at bar.

Thus it follows that McClelland v. Bris-coe, supra, which relies upon Jimenez is also no authority for the State’s position. In the McClelland opinion, which was an action seeking to enjoin further the proceedings under a court of inquiry, Chief Justice Bell evidenced his opinion of the procedure complained of in the instant case as follows:

“Very candidly, such a procedure as authorized by statute and here employed is to us shocking and is at variance with our conception of the minimum requirements of fair play, within the meaning of due process law.”

We readily concur in his statement.

We hold that the relator was denied -his constitutional rights.

Accordingly, the relator is ordered discharged.

MORRISON, Judge

(concurring).

I concur in the order discharging relator because the State now makes it known that he has been indicted and may not purge himself of contempt.

WOODLEY, Presiding Judge

(concurring).

The judges of this Court have been unable to agree upon an opinion but are in agreement that the petition for writ of habeas corpus should be granted and the relator discharged.

The writer agrees that Art. 886, Vernon’s Ann.C.C.P. is constitutional, as held by the Supreme Court and the Court of Civil Appeals, in McClelland v. Briscoe and Ex parte Jimenez, cited by Judge McDonald. He also agrees with Judge McDonald’s view that the matter before us is not moot, and the relator cannot be ordered discharged upon that ground.

The writer would grant the petition for writ of habeas corpus and order the petitioner discharged for the following reasons only

The proceedings before the Justice of the Peace being authorized by a valid statute, the controlling question is whether the relator was “an accused” who could not be called as a witness and required to testify, or was a witness who was bound to testify though he could plead his right against self-incrimination to any and all specific questions, the answer to which might tend to incriminate him. See McCormick on Evidence, Section 122.

If the relator occupied the status of “an accused” when called to testify at the Court of Inquiry, he was not required to testify and was not in contempt for refusing to do so. This is so without regard to whether or not he was denied the full assistance of counsel and whether or not the proceedings were conducted in an otherwise arbitrary and prejudicial manner.

The privilege of a witness to refuse to incriminate himself guaranteed by the Sth and 14th Amendments of the U.S. Constitution furnished no excuse for his refusal to take the witness stand and testify. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct 1489, 12 L.Ed.2d 653.

, The relator did not plead his privilege against self-incrimination to any question. He refused to testify or make any statement of facts.

Relator has since been indicted and the District Attorney concedes that he is an accused in the matter that was under investigation and cannot now be required to testify at the Court of Inquiry. He acted upon the advice of counsel and there is no reason to suppose that, had the relator purged himself, the contempt order, including the fine, would not have been set aside.

As to the fine imposed the contempt order is criminal in nature. The State alone is interested in enforcement in such cases. Beverly v. Roberts (Tex.Civ.App.) 215 S.W. 975; Ex parte Wolters, 64 Tex.Cr.R. 238, 144 S.W. 531. The District Attorney representing the State has joined in the prayer that the relator be discharged.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Ex parte Arthur GETER.
    No. 37473.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.

      Arthur Geter, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner filed his application for writ of habeas corpus before the Honorable Max M. Rogers, Judge of the 12th Judicial District, who did not grant the writ but developed the facts and certified the same to this Court. We consider the application as though originally presented to this Court under Article 119, Vernon’s Ann. C.C.P.

From the record and from a brief submitted by the office of the District Attorney of Harris County, we determine that relator was convicted in Cause # 66774 in the Criminal District Court of Harris County on September 23, 1952, for the offense of possession of marihuana with two prior felony convictions alleged for enhancement and his punishment was assessed at life imprisonment.

At the hearing petitioner testified that he was not represented by counsel, that he was indigent and that the court did not appoint counsel to represent him, offer him the services of an attorney or ask him if he had an attorney. The State was unable to refute the truthfulness of his testimony.

Under the holdings of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed. 2d 799; and Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, silence alone will not constitute a competent and intelligent waiver of his constitutional right to be represented by counsel. See also Ex Parte Hamilton, Tex.Cr.App., 376 S.W.2d 575, and Ex Parte Davis, Tex.Cr.App., 379 S.W.2d 922.

Accordingly, it is ordered that relator be released from his present custody and that he be delivered to the custody of the Sheriff of Harris County to stand trial on the original indictment in said Cause # 66774.


author: DICE, Commissioner.

text:
    Ex parte Grace BRAMMER.
    No. 37477.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    Bracewell, Reynolds & Patterson, by William Key Wilde, Jack J. Rawitscher, Stanley B. Binion, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr. and Carl E. F. Dally, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

On September 10, 1964, relator presented to this court her petition for writ of habeas corpus, in which it was alleged that she was illegally confined and restrained of her liberty by the sheriff of Harris County, by virtue of a certain order issued by Judge Wendall Odom, Judge of the Criminal District Court No. 2 of Harris County, finding her in contempt of court.

Said petition was ordered filed and set for hearing on October 5, 1964, on the question of whether the writ shall issue.

A certified copy of Judge Odom’s order dated August 25, 1964, is attached to the petition, in which order relator was adjudged in contempt for refusing, to testify and give answers to certain questions which had been propounded to her by the May, 1964, term grand jury of said court after having been granted immunity from prosecution, such refusal being on the ground that to do so would tend to incriminate her husband. •

The order provides that relator be pun-, ished by a fine in the sum of $100 and that she be committed to the jail of Harris County until she is willing to testify.

On October 5, 1964, the date" set for hearing, a motion to dismiss the petition was filed in the cause by the state, alleging that the relief prayed for had been granted and that the petition for relief had been rendered moot.

Attached to the state’s motion to dismiss is a certified copy of an order entered by Judge Wendall Odom on September 25, 1964, setting aside and holding for naught the order of contempt entered against relator upon a finding that she had been jointly indicted with her husband, James Brammer, and others, and that the order of contempt had become moot because she could not purge herself, as required by said order.

The order further directs the sheriff of Harris County to return to the district clerk of Harris County the commitment issued on said order of contempt.

It now appearing that relator is no longer subject to restraint by virtue of the order of contempt, the matter presented to this court with reference to the legality of her restraint has become moot and the petition should be dismissed. Ex parte Kent, 124 Tex.Cr.R. 31, 60 S.W.2d 786.

The petition is dismissed.

Opinion approved bv the court.


author: BELCHER, Commissioner. MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Vey McLAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36896.
    Court of Criminal Appeals of Texas.
    June 27, 1964.
    Rehearing Denied Oct. 28, 1964.

      Arthur L. Lapham, J. M. Fly, Victoria,, for appellant.
    Wiley L. Cheatham, Dist. Atty., Cuero, Leon B. Douglas, State’s Atty., Austin, for the State. .
   BELCHER, Commissioner.

The conviction is for murder; the punishment, life.

. The appellant was charged with killing-Cornelia (Connie) Williams on or about April 18, 1963, by shooting her with a gun. Connie Williams was the wife of Curtis. (Bennie) Williams, with whom the appellant had been intimate during their visits-of two or three times a week for a period of' about ten months before the death of Connie Williams.

At approximately 3:50 p.m., April 18, 1963, a badly burned body was found in a rural garbage pit in Victoria County. From the jewelry removed from the body and the dental work which Connie Williams’ dentist compared with his dental charts, the body was identified as that of Connie Williams by the members of her family and the dentist.

An autopsy performed on the body of the deceased showed that her death was caused by a bullet which passed through the aorta and into the heart. Three bullets were removed from the body of the deceased; and an analysis of deceased’s blood revealed that the blood type was Group O,. R.H. Positive.

Appellant strenuously challenges the sufficiency of the evidence to support the conviction.

The testimony of Bennie Williams reveals that he and his wife, the deceased, had lived three miles from El Toro on the Vanderbilt road west of Edna and about fifteen miles from Victoria. Bennie Williams met the appellant at a tavern in Victoria in July 1962, and since that time they had gone together two or three times a week until April 18, and had been intimate almost every time. They talked about living together approximately four months after they first met. They had several quarrels which arose out of Bennie Williams’ dancing with other women, but they “made up” after each quarrel. The appellant asked Bennie Williams if he could get a divorce, and when he told her he could not, she said if he ever left his wife she would live with him. On Saturday night, April 13, they had another dispute about his dancing with another woman, and he told appellant he did not want to see her (appellant) anymore. However, on April 17, Wednesday night, Bennie Williams returned to appellant’s trailer house. During this visit, when he told her he was going to spend more time with his wife and family, the appellant asked him if anything ever happened to his wife if he would come back to her, and Bennie Williams said “yes, I guess so.” Then he told her he “would probably see her Saturday night” and left to go to his home.

The appellant was married but during her acquáintance with Bennie Williams she and her husband were separated, and on February 7, 1963, they were divorced. They had two sons, one of whom lived with his father and the other, Harold McLain, Jr., lived with his mother (the appellant) in a trailer house in Victoria. Appellant told Harold Jr. that Bennie Williams was not married.

Before April 18, the appellant did not know and had never seen Bennie Williams’ wife, nor did the latter know nor had she ever seen the appellant, and she did not know that her husband, Bennie Williams, was acquainted with or was dating the appellant.

Harold McLain, Jr. testified that Bennie Williams had been coming to Victoria to see his mother, the appellant, two or three times a week for about ten months; that on April 17, the appellant came home in a black Buick, with red trim, which she had borrowed from Pete Wrigge to use while her car was being repaired, and she parked the Buick on the other side of the trailer park from her trailer house; that the next morning, April 18, she awakened him about 7:30 or 8, left in the Buick, and returned about 8:30 or 9 a. m.

At this point, the state pleaded surprise as to Harold’s testimony about appellant’s movements and statements and the time they occurred, during the morning of April 18, and proof was offered in support of its position. To contradict Harold’s testimony the state introduced a portion of his written statement, which recites in part as follows:

“On Thursday, April 18, 1963, my mother woke me up at 6:30 a. m. She said she was leaving and wouldn’t be back until about 11:30 a. m. She didn’t say where she was going. She left in the Buick because I could tell by the loud noise that it made. The Dodge was parked by my window. I got up at about 8:30 and went to Fergusion’s Drug Store for breakfast. I then went back home and my mother came home about 10 a. m. and parked the Buick in the same place that it was parked before. She changed clothes and took a shower. About 10:30 a. m. she drove the Buick back to Wriggie’s and I followed in the Dodge. She then drove the Dodge to work and I drove the Dodge back home. I stayed around home most of the day. Some girl that worked with my mother brought her home about 9 p. m. She then told me that if anyone asked me anything that I should tell them that the Buick wasn’t moved and that she didn’t use it, and that she had been home all morning Thursday morning, and that Rose had taken her to work at 10:30 a. m. Thursday Morning, April 18, 1963. I have read this statement and it is true and correct.”

About 7:20 a. m., on April 18, a neighbor who was on the same rural telephone line with the deceased — which line provided distinguishing rings for the two telephones— heard, at several intervals, the one ring indicated for the Williams’ (deceased’s) residence, as distinguished from the two successive rings for her own telephone.

Another neighbor, whose residence was nearby that of the deceased, testified that deceased appeared excited about 7:30 a. m., April 18; that she did not see the deceased leave, but when she went to her home at 12 noon the deceased was not there, and her housework was undone, which was, for her, unusual.

The witness Kutac testified that while traveling toward El Toro about 8 a. m., April 18, she saw a 1957 black Buick with a red stripe parked off the pavement on the right hand side of the road a short distance from and facing the store at El Toro; that the occupant of the automobile had the left hand and face on the steering wheel, looking away from the road; that the person was wearing a red scarf with a black binding but she could not identify the person. She further testified that about ten days later she saw and examined a 1957 black Buick with a red stripe at the Sheriff’s Office in Victoria and that it was the same car she had previously seen parked on the El Toro road.

The operator of a grocery store at El Toro testified that the deceased lived about two miles from the store; that shortly before or after 8 a. m., April 18, the deceased drove her car into the store’s driveway and remained seated in the car. Five minutes later the automobile was still there but the deceased was gone although the store manager never saw her leave. Deceased’s automobile remained parked at the store until her relatives came looking for her about 3 p. m. that day.

When,the witness Wilburn, a rice farmer, stopped at the store in El Toro about 8:10 a. m., April 18, he saw deceased’s car parked at the store but no one was in it. After leaving the store and passing the garbage pit, he saw ahead of him a woman getting-out of a car on the passenger side and as he-came to the car, which was a black Buick with a red stripe, he observed that the-woman was in a hurry and had an unpleasant expression on her face. This occurred between 8:40 and 9 a. m., April 18, about 1.4 miles from the garbage pit. As Wilburn was passing the car he almost stopped because of the driver opening her car door and starting to get out. They were facing each other. While testifying, Wilburn identified the appellant as the driver of the car. Later, Wilburn saw a car at the Sheriff’s Office, and testified that in his opinion it was the car he had seen on the road near the garbage pit. From the pictures of the deceased, Wilburn identified the passenger as the deceased.

Wilburn testified that while about a mile from the garbage pit at 10 a. m., he could see smoke coming from the direction of the garbage pit; that it was black smoke which would go up in big blasts, then diminish, and momentarily go back up; and that he saw smoke coming from the garbage pit when he came back along the road near the pit about 11:40 a. m., April 18.

Frank Sala, a licensed mortician, of 35 years experience, testified that he removed the deceased’s body from the garbage pit. Although he made no extensive investigation at the scene or in the area of the body, he expressed the opinion that the body was not burned in the garbage pit.

Two days after the body of the deceased was discovered, a two-gallon can with the odor of some inflammable fluid coming from a vent hole therein and dark red stains on the bottom, was found on the road near the garbage pit. A chemist testified that from an examination of the can he found on the bottom some blood spots which were of human origin, but he was unable to determine the blood type. On cross-examination Harold McLain testified that the can looked like one they had at the trailer house.

On April 17, about S :30 p. m., the appellant borrowed a 1957 black Buick from S. J. Wrigge, in Victoria, saying she wanted to go to see a doctor in Edna the next day, and that she was going to have her car repaired. Appellant returned the Buick at 10 or 10:30 a. m., April 18. Wrigge stated that on the previous day, before appellant borrowed the Buick, he had washed and cleaned the inside of the automobile and that he did not see any oil or blood on the floor board or upholstery, and that he never saw an oil can under the seat on April 17. On April 24, Wrigge saw an oil can protruding from under the front seat of the 1957 black Buick, and also saw oil on the floor mat. The oil can appeared to have been opened with a beer can opener. After Wrigge heard that appellant had been questioned about deceased’s death, he examined the Buick more closely, on April 25, and on the passenger side he could see red stains in the oil soaked floor carpet and a blood spot on the padded dashboard.

It was stipulated that the appellant had never made any appointment with or been in the office of any doctor, dentist, or medical man or woman in Edna.

Sheriff Marshall testified that when he ■examined the Buick, about April 29, he found several spots of blood on the dashboard and glove compartment of the automobile and the floor mat was almost covered with oil.

A chemical test thereof showed the contents of the oil can found under the front seat of the Buick to be similar to the oil on the floor mat.

The chemical test made thereof revealed that the scrapings off the dashboard and portions of the floor mat taken from the Buick on April 29, were of human blood, type O, R.H. Positive.

Chemist Beardsley, of the Texas Department of Public Safety, made microscopic studies of hair found on the right front floor board of the Buick, and compared such hair with hair removed from the head of deceased’s body and he expressed the opinion that the hairs were identical in all respects and could have come from the same person or body.

On December 28, 1962, a merchant in Palacious sold to Harold McLain, Sr., the husband of the appellant, a .22 RG10 Revolver, which was foreign made, and also sold him a box of cartridges.

Fred Rymer, supervisor of the firearms section of the Texas Department of Public Safety, with 23 years of experience in that section, was delivered three bullets, identified as those removed by a physician and pathologist from the body of the deceaased, to determine from what type of firearm they were discharged. After making tests he expressed the opinion that these bullets were fired from a .22 RG10 Revolver which was made in Germany.

In October or November, 1962, the appellant while discussing large purses with a friend, stated that, among other things, she carried a gun in her purse.

Testifying in her own behalf, the appellant, age 34, stated that she was married to Harold McLain, Sr., age 36; that they had two sons, one of whom Harold McLain, age 15, lived with her, and that the other son was living with his father; that they were divorced February 7, 1963, and remarried June 21, 1963. She testified that after she had separated from her husband she began going with Bennie Williams in July, 1962, and they had two or three dates a week. She stated that, on April 17, she borrowed a Buick from S. J. Wrigge to use while having her car repaired, but she denied telling him she wanted to drive the Buick to Edna. She further testified: During a date with Bennie Williams on the night of April 13, he never said anything to her about ending their relationship but said he would return April 17, which he did, and left about 11 p. m. The next morning, April 18, she arose at 7 a. m., and woke her son about 7:30 or 8 a. m. She then went to a cafe, arriving between 8 and 8 :30 a. m., and after drinking two cups of coffee, returned-home. Her son-had already been to the garage to see about repairing the car. After getting some clothes she drove the Buick to the house of the person who did her laundry; and then she stopped at a service station, and next went to a grocery store. While there she telephoned Rose Lockwood about 9:30 a. m. not to come by the trailer for her. Then she went home, dressed, and returned the Buick to Wrigge, and her son took her on to the place she worked, arriving about 10:30 ;a. m. About 6:30 p. m-. that evening, Bennie Williams came by where she was working. She asked if he had come to see her and he said “not tonight,” that he was looking for his wife who he thought was shopping.

The appellant denied being at El Toro on April 18, or that she had ever been at the garbage pit. She admitted owning a two-gallon oil can but said it was a Texaco can instead of the Humble can which was introduced in evidence; that she had never seen or had a foreign made pistol; that she never poured oil on the Buick and did not see any oil or blood on it when she used it. The appellant denied shooting or burning the body of the deceased, and denied asking Bennie Williams if he would return to her if anything happened to his wife.

Harold McLain, Sr., testified that on December 28, 1962, he bought a .22 GR10 Revolver, which he carried in his suit case; that the appellant had never seen it, and that he’sold it in January, 1963, to a laborer on a pipeline, and had not seen him again.

Rose Lockwood testified that she worked with the appellant at a store on April 17; that appellant asked her for a ride to work April 18 when their hours were to be from 11 a. m. to 9 p. m.; that about 9:30 a. m., April 18, appellant telephoned from a grocery store saying she could use her car, and she saw appellant at the store shortly after 10 a. m. where they worked all day. On cross-examination the witness stated that appellant told her she had no alibi; that appellant said she was out driving on the morning of April 18, but denied that appellant told her she drove on the Goliad Highway or near Refugio on April 18. Two of state’s counsel testified that Rose Lockwood stated to them that appellant had told her she drove out on the Goliad Highway and near Refugio on April 18

The appellant called four witnesses who testified that her general reputation for truth and veracity and for being a peaceful and law-abiding citizen was good.

The court charged the jury on the law as applicable to circumstantial evidence, and also charged on alibi.

The facts and circumstances surrounding the deceased’s death, when considered as a whole, are sufficient to warrant the jury’s conclusion that the appellant killed the deceased.

Appellant contends that the trial court erred in permitting the state to impeach its witness Harold McLain, Jr.

In presenting its case, the state called Harold McLain, Jr. as an adverse witness, to which the appellant objected on the ground that when the state called him it should be as a state’s witness. After a conference at the bench, the court instructed the jury to disregard the term “adverse”' applied to the witness when he was called by the district attorney and not to consider it for any purpose during their deliberations. Next, the record shows he was called as a witness by the state.

The movements and statements of the appellant and the time they occurred, on the morning of April 18, were deemed vital facts in the case.

Harold McLain testified that the appellant left home about 7:30 or 8 a. m., April 18, and returned about 8:30 or 9 a. m., the same morning. After this testimony, the state pleaded surprise and sought to contradict it by proof that the witness had made a written statement to the county attorney, which he re-affirmed before the grand jury except as to some matters not relating to the occurrence on the morning of April 18. The statement shows that the appellant left the house about 6:30 a. m., on April 18, and returned about 10 a. m., the same morning; that she cautioned Harold to say, if asked, that she had not used the Buick and had been home all morning, and that Rose took her to work.

After the plea of surprise had been developed in the absence of the jury, the following occurred in their presence:

STATE: “If it please the Court, the State would offer that portion of the statement that we have just read.” (Shown elsewhere in opinion.)
APPELLANT: “We object to it.”
COURT: “The objection will be overruled.”
APPELLANT: “I am objecting to just introducing a part of the statement. If any parr of the statement is introduced, it should all be introduced.”
COURT: “You have the right to offer the rest of it.”
APPELLANT: “Well, we will offer the rest of it. It is the State’s evidence.”
STATE: “Are you offering the rest of the—
APPELLANT: “Yeah, I’ll do it when my turn comes up.”

The objection made to the introduction in evidence of the portion of the statement did not point out the grounds of the objection. Therefore, it is deemed insufficient to preserve for review the admissibility of the statement. S Tex.Jur.2d 68, Sec. 41; Press v. State, 168 Tex.Cr.R. 1, 322 S.W.2d 525; Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199. Further, the general objection makes a review of the complaint that he had been deprived of a statement of facts in preparing the formal bill of exception unnecessary.

Appellant insists that the trial court erred in refusing her request, made while the witness Wilburn was testifying, that she be given a copy of the statement made by the witness Wilburn for the purpose of cross-examination. The request was refused by the court, and to such refusal the appellant stated: “Note my exception.”

After the trial court declined the request for a copy of the statement, the appellant at that time took no further action, and made no effort to have the statement produced for the record. From the record there is no showing that the statement was. used or exhibited by anyone during the trial. Therefore no error is presented. Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455. However, the appellant complained of the refusal of her request for a copy of Wilburn’s statement in his amended motion for a new trial. On the hearing Wilburn’s, statement was produced and is contained in the statement of facts on motion for new trial. The only discrediting fact pointed out by the appellant in her brief is that Wilburn testified that he gave the statement the latter part of April or the first of May, whereas the statement is dated June 8, 1963.. This variance alone would not warrant a reversal.

The other contentions presented have been considered and they do not show error.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant’s extremely able counsel on appeal has taken this Court to task for our original opinion, and though he does not attack or challenge our summary of the evidence set forth in the original opinion, he does express his belief that we accepted blindly the jury’s verdict and failed to exercise our judicial function of passing upon the sufficiency of the evidence.

Another Judge has carefully examined this 900 page record, and we remain convinced that the State has made its case. With persistence the prosecutor carefully combed the community for every available clue which would shed light upon the guilt of the person who shot and then later burned the body of this timid country housewife. Counsel admits the evidence established that his client had the motive or reason for wanting deceased disposed of and that she was seen with the deceased some seven hours before her body was discovered and that she told her son not to tell anyone that she had used the Buick automobile that morning. He fails to mention the testimony of the witness Wilburn, who placed appellant with deceased near where her body was found and who saw smoke rising in intermittent puffs from the garbage pit within an hour thereafter. This telling bit of evidence, when taken with the myriad other testimony, is amply sufficient to support this conviction.

Appellant again complains that the court erred in permitting the State to plead surprise when its witness Harold McLain, Jr. did not testify in accordance with his prior written statement. The statement was taken on the day after his mother’s arrest and she was later released on bail. Harold was brought before the Grand Jury and reaffirmed the correctness of his statement (with the exception of an immaterial point), and the prosecutor very wisely, under the circumstances, refrained from talking to the witness again until he was placed on the stand. This is a perfect case authorizing the plea of surprise.

Appellant again urges that he should have been permitted to examine the statement of the witness Wilburn and the prosecutor’s notes. They will be treated separately. Wilburn’s statement was introduced by appellant at the hearing on the motion for new trial. It was unsealed and available to counsel at that time and when he approved the statement of facts on motion for new trial. If any discrepancy between the statement and Wilburn’s testimony at the trial existed, appellant had ample opportunity long before this case reached this Court to point out on original submission wherein he had been injured by the refusal of the court to permit him to .inspect such statement at the trial. Such being the case, appellant has not brought himself within the rule set forth in Gaskin v. State, 172 Tcx.Cr. 7, 353 S.W.2d 467, and Witt v. State, 170 Tex.Cr.R. 387, 341 S.W.2d 457.

Appellant’s last complaint is to the refusal of the court to permit him to inspect the District Attorney’s notes used by him in interrogating the witness Wilburn. Such notes were sent to us sealed and have been examined. The record does not disclose that Wilburn had ever seen the District Attorney’s notes and the holding in United States v. Dilliard, 2 Cir., 101 F.2d 829, 835, cert. den. 306 U.S. 635, 59 S.Ct. 484, 83 L.Ed. 1036, would preclude appellant’s access to the prosecutor’s notes.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.

ON MOTION FOR REHEARING

WOODLEY, Presiding Judge

(concurring).

The evidence set out in our original opinion, viewed in the light most favorable to the state, is deemed sufficient to sustain the findings of the jury and the appeal was properly decided on original submission.

For the reasons stated, I concur in the overruling of appellant’s motion for rehearing.


author: McDonald, judge.

text:
    Roger G. MENCHACA, Appellant, v. The STATE of Texas, Appellee.
    No. 37182.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    No attorney of record on appeal for appellant.
    James E. Barlow, Dist. Atty., John G. Benavides, Raymond A. Wietzel and Earl C. Hill, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is Robbery with Firearms reduced on motion of the State to the lesser included offense of Robbery by Assault. Upon a verdict of the jury the punishment assessed was 30 years in the State Penitentiary.

The evidence of this case shows that on May 1, 1962, Mrs. Olivia Delanglade was a grocery checker and cashier at Frank Da-vila’s Food Market, located at 1102 El Paso Street, San Antonio, Bexar County, Texas. The facts further show that Mrs. Delan-glade was on that date and location checking groceries at about 8:00 P.M. After first identifying appellant as Roger G. Menchaca, and as one and the same person who held her up, she stated her attention was specifically called to him as he made some motion to, or signal to, another individual in the store. The other individual was shown by Mrs. Delanglade to be Eugene Reyes. Noticing the signal made by appellant, she turned around to see to whom he made the signal. She noticed Eugene Reyes remove a big dark gun from his pocket and put it in his waist. He then stood very close to Mrs. Delan-glade’s husband, who was also in the store, and who is an invalid. Mrs. Delanglade became uneasy but continued to check the appellant’s groceries and when she finished the last item, she turned to appellant. Appellant pointed a gun at her and ordered her to “open up’’; then appellant stuck his gun up to her chest and took the money from the cash register. While this was being done Mrs. Delanglade signaled another employee in the store, and co-defendant, Eugene Reyes, pulled his gun on this employee and ordered him to stay where he was, and then turned his gun on Mrs. Delanglade and ordered her not to move. Appellant then demanded that she open the cash box which was under the bottom of the counter holding the cash register and appellant also took the money therefrom, and while so doing stuck the gun this time into her waist.

Mrs. Delanglade testified that she was frightened for her life, and was afraid appellant would have killed her if she did not give him the money, and she was also afraid to call her husband for fear the other party, Eugene Reyes, would have killed him. There was about Four Hundred ($400.00) Dollars taken in the holdup and the money was placed in a bag of potatoes by appellant who backed out of the store with the gun in his hand ordering •everyone to "stay where you are." Mrs. Delanglade further testified that she picked appellant’s picture out of a mug book at the San Antonio Police Department and also that of his co-principal, Eugene Reyes. Then in November, 1963, she picked both Eugene Reyes and appellant from a police line-up at San Antonio Police Department.

. On .cross-examination Mrs. Delanglade re-affirmed her positive identification of the appellant.

. The witness, Macedonio Estrada, testified that he was the grocery stock boy at Frank Davila’s Grocery store on May 1, 1962, and at about 8:00 P.M. that date he was aiding Mrs. Delanglade in sacking groceries. He identified and pointed out 'appellant as the person who held up the store on May 1, 1962, and further testified substantially to the same facts as did Mrs. Delanglade. Mr. R. G. Beckman testified that he was a deputy sheriff for Bexar County, Texas, and that in October 1963 he brought appellant back to Texas from Los Angeles, California, and at that time he had a warrant for the arrest of Roger G. Merichaca and he identified and pointed out appellant as the person he brought back.

Counsel for appellant cross-examined Mrs. ■ Delanglade and Mr. Estrada only, and offered' no evidence in his behalf after the 'State rested. Although no affirmative .evidence was presented by appellant from his cross-examination of the State’s witnesses appellant implied that he was in the State of California at the time of the offense and therefore could not have committed the crime.

We find the evidence sufficient to sustain the jury’s verdict.

There are no bills of exception, either formal or informal.

No exceptions or objections were taken to. the Court’s charge.

Appellant’s counsel filed a Motion, and ■subsequently followed by a First Amended Motion, and then Second Amended Motion for New Trial. We have carefully examined each of the various motions and allegations contained therein. We find no merit in them.

Finding no error, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Jerry HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 37188.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is theft by bailee; the punishment, S days in jail and a fine of $75.

The State does not seek affirmance of this conviction for the reason that there is no allegation in the complaint and information as to the value of the property alleged to have been appropriated.

Without such an allegation the punishment cannot be determined. Art. 1429, Sec. 1, Vernon’s Ann.P.C.; 5 Branch’s Ann.P.C. 2d Ed., Sec. 2674, p. 120; Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47, and cases cited.

The judgment is reversed and the prosecution under the complaint and information is ordered dismissed.


text:
    Ernest LOVING, Appellant, v. The STATE of Texas, Appellee.
    No. 37147.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    Victor R. Blaine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was charged by complaint in the Corporation Court of the City of Houston with the offense of negligent collision in violation of the ordinances of said city. Upon a trial in the Corporation Court, appellant was convicted. Upon a trial de novo in the County Criminal Court at Law No. 3 of Harris County, he was again convicted and his punishment was assessed at a fine of $101.

This is an appeal from the latter conviction.

The record is before us without a statement of facts of the evidence adduced upon the trial, and there are no bills of exception.

There appears in the record a motion to quash the complaint. The motion is shown to have been overruled by the court, but no exception was reserved by appellant to the court’s ruling.

In the absence of such an exception, appellant’s complaint to the court’s action is not properly before us for review. Nesbit v. State, Tex.Cr.App., 374 S.W.2d 666. We have, however, examined the complaint and find that it does allege with reasonable certainty the acts relied upon to constitute negligence, as required by Art. 408a, Vernon’s Ann.C.C.P. See: Payne v. State, Tex.Cr.App., 374 S.W.2d 235.

The proceeding appearing regular and nothing being presented for review, the judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Presiding Judge. DICE, Commissioner.

text:
    Curtis Gale DOBY, Appellant, v. The STATE of Texas, Appellee.
    No. 37014.
    Court of Criminal Appeals of Texas.
    June 3, 1964.
    Rehearing Denied Oct. 28, 1964.

      Orville A. Harlan, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and James I. Smith, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of a narcotic drug; the punishment, enhanced by a previous conviction in 19S3 for passing a forged instrument and a conviction for burglary in 1956, life.

Officers, searching an apartment under authority of a search warrant, saw the appellant throw a glass jar out the back door; throw a package containing a syringe, a needle and eye droppers, which hit one of the officers and fell to the floor, and drop a plastic package which he was restrained from placing in his mouth.

The package dropped was recovered from the floor and was found to contain eight white tablets, seven of which were shown by the testimony of Chemist McDonald to be isonipecaine, a narcotic drug.

No question is raised as to the legality of the search warrant or as to the sufficiency of the evidence to sustain the finding of the jury that the appellant unlawfully possessed isonipecaine, a narcotic drug.

The state offered in evidence certified copies, from records of the Texas Department of Corrections, of the judgment and sentence in the burglary conviction of 1956 alleged in the indictment, with fingerprints of the defendant serving the sentence.

Also the state offered in evidence, over objection that it was not a final conviction, certified copies from the record of the Texas Department of Corrections, of the judgment and sentence in the 1953 conviction for passing a forged instrument, with fingerprints of the defendant.

The appellant’s identity as the defendant in the prior convictions was shown by testimony of an expert witness who compared the fingerprints above mentioned with fingerprints of the appellant taken by him.

Appellant’s attack upon the judgment in the 1953 conviction for passing a forged instrument is bottomed upon the fact that, in addition to reciting that the court accepted the defendant’s plea of guilty and assessed his punishment at 5 years, the portions of the printed form applicable in a plea of guilty before a jury were not deleted leaving this portion of the judgment to read:

“-and eleven others, was duly selected, empaneled and sexxx xxcording to law, who, having heard the indictment read, and the Defendant’s plea of guilty thereto; and hxxxxx heard the evidence submitted and having been duly charged by the Court, retired in charge of the pxxxxx officer, the Defendant being present, and in due form of law returned into open Court the following vxxxxxx which was received by the Court, and is here now enterxxxxx.”

In the absence of the jury in the case at bar it was shown that the trial in 1953 was before the court without a jury; that probation was granted as shown in the judgment and was afterwards revoked and sentence pronounced.

We overrule appellant’s contention that the conviction for passing a forged instrument alleged in the indictment was not a final conviction available to enhance the punishment. Brown v. State, Tex.Cr.App., 368 S.W.2d 618; Todd v. State, 170 Tex.Cr. R. 552, 342 S.W.2d 575.

It is contended that the certified copies of records of the Texas Department of Corrections were not admissible in evidence because the exhibits had been altered and mutilated by the state at the time they were introduced.

As we understand the record, the jury was retired when the exhibits were offered by the state and, upon objection, certain portions of the exhibits were removed and obliterated from them by the court so as to eliminate any reference to convictions other than those alleged in the indictment.

The sole question for the jury, regarding the prior convictions alleged for enhancement purposes, was whether as an historical fact the appellant was the defendant who was convicted in said causes, as alleged. Whether the convictions were valid or void and whether they were final convictions was for the court.

The trial court did not err in finding the convictions shown by the exhibits to be valid final convictions, and the appellant is in no position to complain that portions of the exhibits which were objectionable to him as showing convictions other than those alleged in the indictment were deleted before the exhibits were admitted before the jury.

Appellant’s attack upon the court’s charge because the jury was told that it is unlawful for any person “ * * * to possess, have under his or her control, Isonipe-caine * * * ” is without merit.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that Terry v. State, 149 Tex.Cr.App. 110, 191 S.W.2d 736, supports his contention that the 1953 conviction for passing a forged instrument, used by the state for enhancement, was not a final conviction because the judgment introduced in evidence and reciting that the court accepted his plea of guilty and assessed punishment at five years, contained portions of the printed form applicable to a plea of guilty before a jury which were not deleted.

Terry v. State, supra, is not applicable because, in that case, the sentence pronounced in the prior case used for enhancement failed to include the penalty and was later corrected in a nunc pro tunc proceeding. Here, there was no nunc pro tunc proceeding correcting the judgment.

Under the decisions cited in our original opinion, we remain convinced that the 1953 conviction was shown to be a final conviction and available to the state for the purpose of enhancement.

Appellant now urges, for the first time, that the search of his apartment was illegal because the affidavit for the search warrant did not satisfy the requirements of the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, as construed by the Supreme Court of the United States in Aguilar v. State, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 723.

As pointed out in our original opinion, appellant did not challenge the legality of the search warrant. An examination of the record shows that prior to admitting evidence of the search, the search warrant was produced by the state and exhibited to counsel for appellant. After inspecting same, counsel stated to the court that appellant had no objection.

The search warrant was not introduced in evidence and does not appear among the exhibits in the cause. Appellant has attached to his motion for rehearing a purported certified copy of the warrant, prepared by Justice of the Peace W. C. Ragan. We cannot consider such a copy as a part of the record in the case. Robertson v. State, 168 Tex.Cr.R. 35, 322 S.W.2d 620; Lewis v. State, 149 Tex.Cr.App. 224, 192 S.W.2d 889.

The affidavit and search warrant not being a part of the record in the trial court, appellant’s petition for a writ of certiorari, directing the clerk to include such instruments in a statement of facts to be forwarded to this court, is denied. Bracken v. State, 29 Tex.App. 362, 16 S.W. 192.

The motion for rehearing is overruled.

Opinion approved by the court.


text:
    D. D. DOUGLAS, Appellant, v. The STATE of Texas, Appellee.
    No. 37212.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is passing as true a forged instrument; the punishment, three years and six months.

No statement of facts accompanies the record.

By Bill of Exception #1 complaint is made of the refusal of the Court to grant a certain defensive charge. The bill contains no recitation of fact to demonstrate that such a charge should have been given. In the absence of a statement of facts bills of exception to the Court’s charge cannot be considered. Williams v. State, Tex.Cr.App., 378 S.W.2d 325, and cases there cited.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. McDonald, judge. WOODLEY, Presiding Judge MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Alpheous Wayne HODGES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 36851.
    Court of Criminal Appeals of Texas.
    May 13, 1964.
    On Rehearing June 27, 1964.
    Rehearing Denied Oct. 28, 1964.

      Ray Stevens, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Edward N. Shaw, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appellant and Clarence E. Gipson, Jr., were jointly indicted for robbery by assault, the indictment alleging that they took from Bessie Lou Nelson one hundred dollars in money and one ring.

Severance having been granted, the appellant was found guilty by a jury and assessed a term of seven years.

He appeals from such conviction and complains, in his brief, (1) that the court erred in not granting his motion for new trial because the evidence is insufficient to sustain the conviction; (2) that the court erred in his charge to the jury, and (3) that the court erred in refusing to allow the mother of Gipson to testify that she had advised him to obtain possession of the ring.

The prosecuting witness testified that on August 31, 1963, her name was Bessie Lou Nelson; that she had since married and her name was Bessie Lou Nelson Langston; that prior to August 31, 1963, she had been Clarence E. Gipson’s prostitute for some four years but had left the house of prostitution where she last worked for him some four months before August 31, 1963; that on said date she saw the appellant and Gipson in a pool hall in Houston and Gipson asked her to go outside and she did.

The appellant was in his car and the motor was running when Gipson “grabbed and kicked” her into the car and got in beside her. Gipson began calling her “nasty names” and was beating her head on the dash board as the appellant backed out of the driveway.

After stopping for Gipson to make a phone call, the appellant drove to a wooded area near the Bayou. They were talking about where they could go and no one could hear her screaming.

They found such a place and stopped the car. Gipson got out and cut a limb off a tree and told the prosecuting witness to take her clothes off and she did. He had her get on her hands and knees on the ground and he cut her hair off. The appellant was there, at one time touching or holding her hands, but Gipson told him he did not need any help and he got back in the car and turned up the radio.

Gipson then took a diamond ring off her finger, had her lie on her back with her legs up in the air and whipped her with the limb he had cut.

In addition to losing her ring, $100 in money the prosecutrix had in her brassiere disappeared during her ordeal.

The prosecutrix also testified that Gip-son stated that she was being beaten and robbed “because I ran away, and then I was supposed to talk to the Austin Sheriff’s Department about other characters and dope.”

She was finally driven back to the pool hall, Gipson telling her he wanted everybody to see how she looked. She testified that her hair was “about an inch long; some parts were longer but the crown was short and my body was black and blue.”

She testified that she had been with the appellant and he wanted her to be his prostitute but she had “never hustled for him.”

The prosecutrix admitted that she had told everybody she was Gipson’s wife and had lived for a time with his mother who thought that she was married to her son, and that she had worked under the name Linda Gipson, but testified “we were never married.”

Evidence was introduced showing that the prosecutrix had purchased a watch for $59.50 and the ring which cost $95.00 on credit while Gipson was in the penitentiary and she was living with his mother, and the jewelry store was holding Gipson’s stepfather responsible for an unpaid balance of $85.85 as co-signer.

The prosecutrix testified that Gipson had the watch and that the ring belonged to her; that she had paid what she was supposed to pay and that she had been told that the balance would be paid by an unnamed person, “and if it’s not, I can pay for it and I will.”

She testified that when Gipson took the ring off her finger he said something to the effect “It is mine” — or “It belongs to me.”

The evidence shows that the prosecuting witness called Frank L. Bates, Criminal Investigator with the Travis County Sheriff’s Department, about 1 A.M. from Houston. He met her at the airport in Austin the next morning and took her to the the Sheriff’s office. Bates described the condition of her body on September 2, 1963:

“A. The body was very badly bruised and scratched in back. It was bruised almost continuously from the waist down.
“Q. From the waist down to where?
“A. To the ankles.
“Q. From the waist down to her ankles?
“A. Yes, sir. In the back.
“Q. Did you notice anything about her arms?
“A. Yes, sir. There were bruises on her arms; bruises on her face, and lots of her hair was missing.
“Q. A lot of her hair missing?
“A. Yes, sir.”

Gipson admitted to Joe Thorpe his participation in the robbery and took him to the ring and to the scene where the officer found the cut tree and loose hair which Gipson said had been cut off the head of the complaining witness.

The appellant offered in evidence the testimony of Officer L. E. Shipley to the effect that Gipson “represented that the defendant Hodges did not have any part of the offense except he drove the car.”

Mrs. Guillory testified that at Christmas time her husband went with the prosecuting witness she thought was married to her son and they picked out a watch “and he made the mistake of co-signing with her”; that he went on board ship in January “and as soon as he shipped out she went down and added the ring to the same account,” and that “my husband had to pay the watch out.”

The trial court did not err in excluding testimony of Mrs. Guillory to the effect that she had been contacted by the Jewelry Store and had requested her son Clarence E. Gipson to return the ring to her .so she could return it to the Jewelry Store. Such evidence constituted no defense to the taking of the ring by assault and by violence.

The court charged the jury on the law of principals, and instructed the jury that all persons are principals who are guilty of acting together in the commission of an offense regardless of the particular part performed by either or both. The-jury was also instructed that any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act, however mere presence of one where the act is being committed does not make him a principal.

Appellant’s complaint to the omission of further instructions on the law of principals is not before us. Objections to the charge appearing in the transcript are not shown to have been offered before the charge was read to the jury, and the only exception to the court’s order overruling the objections is the notation below the judge’s signature.

The contention that the evidence is insufficient to sustain a finding that a robbery occurred is overruled.

The appellant’s brief concedes that unquestionably he drove the car and was part of the plan to aid or abet in the whipping, but contends that nowhere in the testimony is there support for the robbery theory. We do not agree.

The appellant was present when the assault was made, the ring was taken and the money disappeared. He was present when Gipson stated the reason the prosecuting witness was “being beaten and robbed.” He drove the prosecuting witness to the ■isolated place where she was assaulted and robbed, and back to the pool hall thereafter. The jury was warranted in concluding that he was hot merely present but that he agrefed to 'the commission of the offense and was a principal.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

McDonald, judge.

Appellant strenuously urges in his motion for rehearing that the facts are insufficient to support the verdict of the jury. We agree with appellant’s contention.

While it is not our desire to restate the facts appearing in the original opinion, we do think it desirable to here state the salient facts which were not stated in the original opinion.

When asked upon cross examination, “I’m just saying this, that Junior Gipson, when he took you away from Red’s place, it was for the purpose of giving you a whipping?”, the prosecutrix responded: "Yes.” The prosecutrix related that Gipson "took my ring away before he whipped me"; "He took it off my finger”. She further related that Gipson said: “It’s mine”, or “It belongs to me”.

Upon re-direct examination the prosecu-trix was asked: “That money that was taken from you, was that your money?”, and she replied: "I know I had it on me, and when I returned I did not have it with me”. Then the prosecutor asked later: “And was that ring and money taken against your will?” and she replied: "I guess the money was taken. I just said it was not with me zvhen I returned.”

It is clear to us that the facts are deficient and do not sustain the jury’s finding of appellant’s guilt for the offense of robbery by assault. The only type of assault made prior to the taking of the ring was when Gipson “was beating her head on the dash board.” The ring was first taken by Gip-son and the beating followed. Viewing the evidence most favorably to the state, it is only by the wording of the leading questions elicited by it that anything like a favorable bit of testimony is adduced. The prosecutrix’ testimony shows a mere taking of the ring off her finger, no giving up of the ring through fear. The testimony is totally lacking as to the one hundred dollars. All of the testimony in this respect shows that the prosecutrix had a hundred dollars, and then after the beating and after putting her clothes back on, she did not have it.

This case unquestionably presents a sordid story, but we are called upon to apply the law to the facts uninfluenced by ugliness. A reconsideration of the facts as dispassionate lawyers leads us to the inescapable conclusion that they do not show that this appellant took or participated in the taking of the ring or the money from the injured party by means of placing her in fear.

Accordingly, appellant’s motion for rehearing is granted, judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

The views of the writer are set out in the original opinion affirming this conviction for robbery.

ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

The State construes our opinion on motion for rehearing as holding that the offense of robbery may be committed only by placing the victims in fear. It was not our intention to so hold, though such is the normal case which reaches this Court. What we did hold was that this record, taken-as a whole, does not show that appellant was a party to any agreement to rob prosecutrix or that he participated in the taking of her property or shared in a division thereof. She testified that appellant’s co-defendant from whom she had gained her freedom had been her pimp and that the journey to the woods was for the purpose of punishing her for having done so. It is evident from her testimony that she was carried back to the pool hall so that all those there assembled might see her shorn locks and her bruised condition. It is clear to the writer that appellant participated in this form of chastisement simply by driving the automobile and nothing more. At one juncture in her testimony she stated that appellant did not take the ring from her, but was over by the automobile playing the radio and walking around. According to her, appellant’s co-indictee’s announced purpose upon leaving the pool hall was: “I am going to take you out in the country and give you what you have had coming for a long time.” There was nothing in that statement to indicate that appellant knew that property was to be taken from her. This is fortified by Officer Shipley’s examining trial testimony, admitted without objection, to the effect that appellant’s co-indictee had stated to him that appellant took no part in the offense except to drive the automobile.

As Judge Hawkins so ably explained the law in Alaniz v. State, 147,Tex_Cr.R. 1, 177 S.W.2d 965, in the absence of a previous agreement or understanding to rob the injured party, participation in a fight with him would not make the accused guilty as a principal to the crime of robbery committed by his companion' unless he knew that his companion intended to take the victim’s personal property. ■ • ;

• So viewing the facts, the State’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(dissenting).

The Court of Criminal Appeals or its judges-are not the triers of facts and are not at liberty to substitute their findings for those of the jury. Only where the evidence, viewed in its strongest light from the standpoint of the state, fails to'make guilt' reasonably' certain' is .the appellate court authorized to set aside-a conviction for insufficiency of the evidence. Wright v. State, Tex.Cr.App., 364 S.W.2d 384, cert. denied, 375 U.S. 870, 84 S.Ct. 96, 11 L.Ed. 2d 96; Mason v. State, 108 Tex.Cr.R. 452, 1 S.W.2d 283; Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573.

All controverted defensive issues raised pass out of the case with the jury’s verdict. Paris v. State, 157 Tex.Cr.R. 580, 249 S.W. 2d 217, cert. denied, 344 U.S. 857, 73 S.Ct. 92, 97 L.Ed. 665, reh. denied, 344 U.S. 888, 73 S.Ct. 183, 97 L.Ed. 687.

The evidence viewed in ■ the light and manner required by the rules of law stated is sufficient to sustain the jury’s verdict and it should not be set aside on the ground of insufficient evidence.

The appellant drove his co-principal Gip-son and the prosecuting witness to an isolated site, where her cries could not be heard. On the way he saw Gipson strike her head against the dash. He was present and offered his assistance when she was forced to disrobe and her hair was cut off. He was present when Gipson forcibly took a ring off her finger and told her it did not belong to her, it belonged to him. He was nearby while Gipson was beating her with a tree limb after her ring was taken. A $100 bill which the prosecutrix had ia her brassiere disappeared while the three were together.

The fact that the robbery was not the prime objective of the appellant and Gip-son is not controlling. The taking of the ring by force with fraudulent intent was robbery. Whether the appellant had knowledge of the robbery which occurred in his presence and during the commission of the assault of which he and Gipson were equally guilty was for the jury. Blair v. State, 138 Tex.Cr.R. 247, 135 S.W.2d 715; Counts v. State, 149 Tex.Cr.R. 348, 194 S.W.2d 267. The jury has resolved the issues against the appellant.

When Gipson told the prosecuting witness, “in a medium voice,” the reason she was “being robbed and why she was being beaten,” the appellant was only “a good six feet away.”

I respectfully dissent from the overruling- of .the State’s Motion for Rehearing.


text:
    Frank FORSEILLE, Appellant, v. The STATE of Texas, Appellee.
    No. 37137.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1964.
    W. S. Foster, Waco, for appellant.
    ■ Leon B. Douglas, State’s Atty., Austin, -for the State.
   DICE, Commissioner.

The offense is driving while intoxicated; the punishment, fifteen days in jail and a fine of $50.

Upon the trial, the' state’s witness Burt Scheinbraun testified that on the date alleged he witnessed an automobile accident at the intersection of 12th and Washington Streets in the city of Waco and observed the appellant driving one of the automobiles involved in the accident. The witness stated that immediately after the accident he went to' appellant’s automobile, where appellant' was- seated behind the steering-wheel and assisted him out of the car. He further testified that at such time appellant smelled of alcohol, that he could not walk without assistance, and expressed the opinion that appellant was drunk.

' Officer Floyd Kelinski, called as a witness by the state, testified that he went to the scene of the accident shortly after it occurred, where he observed the appellant, and expressed his opinion that he was drunk at such time.

Appellant did not testify or offer any evidence in his behalf.

We find the evidence sufficient to support the conviction.

The record contains no bills of exception and there are no objections to the court’s charge.

The judgment is affirmed.

Opinion approved by the Court.


author: BELL, Chief Justice.

text:
    Mrs. Gorman RILEY et vir, Appellants, v. Donald R. CROSSLEY et ux., Appellees.
    No. 14415.
    Court of Civil Appeals of Texas. Houston.
    Oct. 8, 1964.
    Rehearing Denied Oct. 29, 1964.
    Gorman Riley, pro se.
    Don Weitinger, Talbert, Giessel, Cuther-ell, Barnett & Stone, Houston, for appellees.
   BELL, Chief Justice.

Appellants sought to recover damages for personal injuries alleged to have been suffered by Mrs. Riley when an automobile driven by Mrs. Crossley ran into the rear of the automobile occupied and driven by Mrs. Riley. The jury acquitted Mrs. Cros-sley of all asserted acts of negligence and found no damages. Judgment was rendered for appellees.

The jury found Mrs. Crossley did not fail to keep a proper lookout; did not operate her automobile at an excessive rate of speed; and did not fail to make proper application of the brakes. The jury also acquitted Mrs. Riley of any act of contributory negligence and found the collision was the result of an unavoidable accident.

Appellants attack the answer of the jury to each issue inquiring of negligence on the part of Mrs. Crossley; in finding the accident was an unavoidable one; and, in finding no damage, on the ground that each answer is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. This requires an examination of all of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660.

Mrs. Riley' and Mrs. Crossley were the only witnesses testifying to how the collision occurred. Mrs. Riley testified it occurred August 23, 1958, on Fannin Street in Houston. She was on her way to take a friend, who was in St. Luke’s Hospital, a gift. The collision occurred in the morning time. It had been raining and the streets were wet. It had been raining hard but at the time of .the. collision she said she did not particularly recall how hard it was raining but she thought it was only misting. She did not recall whether her windshield wipers were being used. The street was black-top and she said it probably got slick when wet. Another 'automobile had stopped. .in, front oij her preparatory to turning into the street that leads to the left, or east, toward Hermann Hospital. She was in the lane next to the esplanade. She stopped behind the other automobile. She did not know Row long she had been stopped when her. automobile was hit, from t,he rear. She had her foot on the brake. She looked in her rear view mirror. ' She saw Mrs. Cros-sley look up suddenly. The Crossley car was -coming very fast and crashed into the rear of her car. She could not say how far the Crossley car was from her when she first saw it. She could not estimate the speed of the Crossley car but stated it was too 'fast ■ for a slick street. She then said she guessed it was exceeding the speed limit; that is, going over 30 miles per hour. It did not appear to her 'that Mrs. Crossley “pumped” her brakes because there was no'decreáse in the speed after slie observed Mrs. Crossley. Mrs. Riley’s head was thrown back against her back. Her car was pushed forward into the car ahead of her and her head was thrown forward onto her chest. North of the point of the collision about a block was a traffic control signal.

The, above is the substance of Mrs. Riley’s testimony as to how the collision occurred.

Mrs. Crossley testified she had stopped for the red light north of the point of the collision. She was heading south. She started up and about a quarter of a block behind the automobile she observed ahead of her she realized the automobile was stopped. -She applied her brakes and her car slid; she applied them again and she slid into Mrs. Riley’s car. She’knew when she was at the light there was traffic up ahead but she did not know it was stopped. She had a vague idea there was traffic ahead but it was raining quite hard at the time. She did not know how fast she was going but thought she got up to about 20 miles per hour as a maximum speed. She. then said she was going between 15 and 20 miles per hour. She never got over 30 miles per hour. She never saw Mrs. Riley’s, brakes on, or any hand signal. The application Mrs. Crossley made of her brakes did not slow her down “a whole lot.” If she. looked down before the collision it was just after she applied her brakes first and when she slid she could have looked to see if something might have been wrong with the brakes. She didn’t make an effort to turn to the right or left because traffic was on her right and the esplanade was to her left. ■There was no place to go.

The evidence raised fact issues that were determined by the jury. We may not, even though we should disagree with the jury, substitute our judgment for its. We have the authority only to set aside the findings and grant a new trial in those instances where the jury’s answers are so contrary to the overwhelming weight and preponderancé of the evidence as to' be cleárly wrong or manifestly unjust. Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, ref., n. r. e. Each case must be determined in the light of the particular facts. We are unable, in the light of all the evidence, to say that any of the jury’s answers are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

The complaint with regard to the jury’s answer finding no damage becomes immaterial in the light of our holding that the jury’s answers to the liability issues are sufficiently supported by the evidence. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, opinion adopted by Supreme Court. We will say, however, we have read the entire testimony relating to injuries and damage and we cannot say the finding of the jury is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The authorities relied on by appellants are factually distinguishable from the case before us.

The judgment of the trial court is affirmed.