Babcock v. State, 44380

• Citation: 473 S.W.2d 941
• Decision Date: 14 December 1971
• Docket Number: No. 44380,44380
• Parties: Vernon Lee BABCOCK, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 941

473 S.W.2d 941 Vernon Lee BABCOCK, Appellant,
v.
The STATE of Texas, Appellee. No. 44380. Court of Criminal Appeals of Texas. Dec. 14, 1971.

C. C. Divine, Houston, for appellant.

Jules V. Damiani, Jr., Dist. Atty., M. Bruce Fort, Asst. Dist. Atty., Galveston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction of burglary with the intent to commit theft; the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., twelve years.

The record reflects that White's Store, No. 80, in Texas City, was broken into on

Page 943

December 16, 1969, and an inventory following the burglary reflected 103 guns were missing from the store.

The appellant's confession, dated '1--22--70', was introduced into evidence. It recited that appellant, along with persons named Leon and Brenda, gained entry into the White's Store by placing a bar under the garage door, prying it up to allow appellant to slide underneath, and let the others in the other door by inserting a screwdriver in the padlock and forcing it open. The confession further recites how they gained entry into the portion of the building containing the guns, the cutting of the wire locks on the guns in the racks by appellant, the breaking into and removal of rifles from a wire cage, the opening of the sliding door to the building to allow Leon to drive his truck into the building in order that they might load the guns in the truck. The confession also recited that Brenda, Leon and appellant left in the truck with the guns, traveled down '13th going west' to the first stop light where appellant got out and picked up his own car and went home after a stop at a lounge. Appellant's confession further stated that after two days of haggling with Leon, he received $1,600 (for his interest in the guns).

The appellant contends that the warning clause in the confession is insufficient in that it provides: 'and that any statement made by me may be used in evidence against me at my trial.' It is contended that the confession must adhere to Article 38.22, Vernon's Ann.C.C.P., as passed by the Legislature in 1965, where it provides: '* * * that any statement made by him may be used in evidence against him on his trial for the offense concerning which the confession is therein made.'

We find the portion of the warning complained of to be in compliance with Article 38.22, V.A.C.C.P., as amended by the 60th Legislature in 1967. See Hancock v. State, Tex.Cr.App., 462 S.W.2d 36, where a warning was approved which contained: 'that any statements he made might and probably would be introduced against him.'

Art. 38.22, V.A.C.C.P., (as amended in 1967), only requires a statement to be witnessed when the defendant is unable to write his name. We reject appellant's complaint that the statement was not witnessed.

Appellant contends that he was not taken before a magistrate as pertains to the case before the court as required by Articles 15.17 and 38.22, V.A.C.C.P. The record reflects appellant was arrested on a Harris County burglary warrant in Texas City, January 20, 1970, at 4:30 P.M., and was taken before a magistrate in Texas City, at...