Bannon v. State, s. 38575

• Decision Date: 08 December 1965
• Docket Number: Nos. 38575,38576,s. 38575
• Citation: 87 S.Ct. 38,406 S.W.2d 908
• Parties: Thomas Edward BANNON v. STATE. Jack Carroll SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 908

406 S.W.2d 908

Thomas Edward BANNON v. STATE.

Jack Carroll SMITH v. STATE.

Nos. 38575, 38576.

Court of Criminal Appeals of Texas.

Dec. 8, 1965.

Rehearing Denied Feb. 2, 1966.

Second Motion for Rehearing Denied March 9, 1966.

Certiorari Denied Oct. 10, 1966. See 87 S.Ct. 38.

Ronald R. Waldie, Dallas, Robert Downing, Richardson, Emmett Colvin, Jr., Dallas, (on appeal only), for appellants.

Henry Wade, Dist. Atty., Don Koons, Curtis Glover and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The appellants were separately charged by information but were convicted upon a joint trial for misdemeanor theft; and the punishment for each was assessed at thirty days in jail and a fine of $100.

Howell A. Wall, the resident manager of a 16 unit apartment house testified that shortly after midnight March 6, he saw a late model gray Corvette Stingray automobile occupied by two men parked at the rear of the apartment house; that after a brief time and from a distance of ten feet, he saw said automobile parked in the driveway in front of the apartment house; that during the day of March 7, Dan McElveen, the owner, noticed that some furniture was missing from an unoccupied apartment; and that he had not given anyone permission to take the furniture from the apartment.

Dan McElveen, owner of the apartment house, testified that on March 7, he determined that a chair, an end table and two lamps of the aggregate value of forty dollars which he saw on March 6, had been taken, without his consent, from one of his apartments. The loss of the furniture was reported to the police, and on April 3, he identified the furniture he had missing at the police station. Three girls had previously occupied the apartment.

Detective Helm testified that from his investigation of the theft of the furniture he determined that a gray Corvette Stingray had been seen at the apartment during the night the furniture was taken; that from a girl who had lived in the apartment he learned that she had dated the appellant Bannon; and his further investigation showed that Bannon owned the same type car as the one which was seen by Wall on March 7, at the apartment house and he obtained the license number of said car; that on March 15, when he stopped a car for speeding he observed that it was the same type car that had been seen at the apartment house, and he advised the occupants, who were the appellants, that he was a police officer, and after they identified themselves he told them that he wanted to talk with them about a case, and asked them to accompany him to the police station which they did by following him in their car. On talking with the appellant Bannon, alone, at the police station, Bannon at first denied but soon admitted to Helm that he and Smith took the furniture from the apartment house. Officer Helm then called Smith into the room and upon being asked he admitted to Helm that he and Bannon took the furniture from the apartment. Both Bannon and Smith stated that the furniture was then in the apartment where they were living. When they agreed with officer Helm to bring the furniture to the police station, they left and in fifteen or twenty minutes they returned with the furniture in the gray Corvette Stingray, and later McElveen identified the furniture at the station as that removed from his apartment.

The appellants did not testify or offer any evidence in their behalf.

It is contended that the trial court erred in refusing to grant a mistrial on the ground that the prosecutor commented on appellants' failure to testify.

The contention is directed to the following jury argument of the state: 'I told you, Gentlemen, that we have brought you every scintilla of evidence that the Constitution or the laws of the State of Texas will allow us to bring you and told you everything about the case we know. I also want to read you something additional in the Charge.' Then the state's attorney read the court's instructions in the charge on the failure of the appellants to testify.

The motion for mistrial on the ground that such argument, followed by a reading of that portion of the charge to the jury, violates the rules and is prejudicial and deprives the appellants of a fair trial, was overruled.

It is concluded that the argument complained of did not constitute a comment on the failure of the appellants to testify.

It is insisted that the trial court erred in admitting the oral statements of the appellants made while they were under arrest and for the failure to offer them effective assistance of counsel before the statements were made.

The evidence reveals that officer Helm stopped the appellants for speeding, identified himself as a police officer and when they had identified themselves, Helm told them that he had a case he wanted to talk to them about and asked them to follow him in their car to the police station which they did. At this time Helm had talked with one of the girls who had previously occupied the apartment and while there she had had dates with Bannon; and Helm had obtained the license number of his car which was a gray Corvette Stingray, which corresponded with the car he had stopped for speeding. On talking with the appellants at the station, they admitted to Helm that they took the furniture and voluntarily brought it from their apartment to the station. No charges had been filed when they brought the furniture to the station. At this time Helm told them: 'I'm not sure what charge I will file on you, and I would advise you to contact an attorney,' and then released them, and the next day the attorney now representing the appellants telephoned Helm, and he advised him that they had not been filed on but he was going to do so, and in about two weeks they made an appearance bond.

The oral statement of the appellants that they took the furniture, which they soon brought to the station, and the testimony of officer Helm that he had no knowledge of its location before the statements were made, authorizes the admission of such oral statements in evidence under the provisions of Art. 727, Vernon's Ann.C.C.P. Langer v. State, 171 Tex.Cr.R. 8, 343 S.W.2d 463; Henderson v. State, 172 Tex.Cr.R. 75, 353 S.W.2d 226.

The appellants never at any time requested counsel or that they be provided counsel before the making of any oral statement; and never asked to use the telephone or that any person be...