Atkins v. State, 49155

• Decision Date: 20 November 1974
• Docket Number: No. 49155,49155
• Citation: 515 S.W.2d 904
• Parties: Charles ATKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 904

515 S.W.2d 904

Charles ATKINS, Appellant, v. The STATE of Texas, Appellee.

No. 49155.

Court of Criminal Appeals of Texas.

Nov. 20, 1974.

James H. Chesnutt, II, Beaumont, for appellant.

Tom Hanna, Dist. Atty., Stephen M. Rienstra, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is robbery; the punishment, 22 years.

We are met at the outset with an allegation of deprivation of due process in that appellant was retried in this cause alone solely for vindictive purposes. We will state the sequence of events.

On the 19th day of April 1971, this appellant entered a plea of guilty to two indictments charging the offense of robbery. His punishment was assessed at 12 years in each case. The court ordered the terms to be served concurrently, and notice of appeal was timely given.

On May 28, 1971, appellant and several other inmates effected their escape from the Jefferson County Jail. No violence was connected with the escape.

Appellant was 'returned to custody' on July 8, 1971.

On January 13, 1972, an indictment against appellant was returned charging him with this escape.

On February 18, 1972, appellant plead guilty to this indictment, and his punishment was assessed by a jury at three years. There was no order of cumulation in the sentence.

On February 18, 1972, the court granted appellant's motion for new trial in this cause and denied his motion as to the companion cause against this appellant, the appeal of which is reported as Atkins v. State, Tex.Cr.App., 515 S.W.2d 902 (No. 49, 154, this date decided.)

On June 19, 1972, this cause was again called for trial. A plea of not guilty was entered, an a jury was demanded. The trial resulted in a verdict assessing appellant's punishment at 22 years. There was no order of cumulation in the sentence.

We move immediately to consideration of the opinions of the Supreme Court of the United States in this area.

As we view this record, the rule in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) was not violated because the second trial was before a jury, and the jury was not informed of the fact that appellant had previously plead guilty and received a lesser sentence.

The logic in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), appears to have been complied with because the determination of guilt and the assessment of punishment by the jury was a fresh determination uninfluenced by the prior proceedings. See also Colten v. Kentucky, 407 U.S. 104, 92 S.Ct.1953, 32 L.Ed.2d 584 (1972).

The error in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, (1974), is not present because the same indictment for the same offense was utilized in both the plea of guilty and the trial on the plea of not guilty before the jury. The fact that proof was made at the subsequent jury trial concerning the escape and the fact that the punishment was increased is no indication of vindictiveness on the part of the prosecution because the proof of the escape was legitimate evidence at a new trial which had been granted at the appellant's request.

We find no merit in, nor evidence to substantiate, appellant's contention that the action of the trial court in granting a motion for new trial in this case and denying such a motion in our cause, Tex.Cr.App., 515 S.W.2d 902, No. 49,154, was vindictive within the ambit of the cases heretofore discussed.

In the second ground of error appellant contends that the trial court erred in admitting into evidence weapons, clothing and ammunition taken from appellant's automobile at the time of his arrest, and in admitting testimony that certain money and credit cards were found in appellant's vehicle at the same time because the State failed to 'lay a sufficient chain of custody predicate for the admission of such evidence.' The legality of the search is not questioned.

The record reflects that at the time of the arrest Officer May searched the vehicle and removed three pistols, ammunition, a wallet, a shirt and a bag containing money and credit cards bearing the name of Gilcrease (one of the persons who was robbed). Officer May testified he gave them to his partner, Officer Johnson, at the scene and,...