Beck v. State, 08-82-00084-CR
| Decision Date | 12 January 1983 |
| Docket Number | No. 08-82-00084-CR,08-82-00084-CR |
| Citation | 647 S.W.2d 55 |
| Parties | Allan BECK, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Scott Segall, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., El Paso, Robert Huttash, State Pros. Atty., Austin, for appellee.
Before STEPHAN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.
This is an appeal from a conviction for second-degree felony escape. The jury assessed punishment at twenty years confinement. We reverse.
In Ground of Error No. One, Appellant contends that the indictment in this cause was defective in the sufficiency of notice afforded him to prepare a defense. His pretrial motion to quash was overruled by the trial court. The indictment alleged that Appellant, having been convicted of robbery, escaped from the custody of the Sheriff of El Paso County, using or threatening to use a deadly weapon in the furtherance of such escape. The indictment did not indicate the subject of Appellant's use or threatened use of the deadly weapon. This assaultive aspect of the escape is an aggravating subsidiary offense which elevates the punishment range for escape from a third-degree felony to second-degree. The identity of the assault victim is not an essential element of the indicted offense such that the failure to specifically allege the victim would constitute fundamental error. The alleged error is one of the sufficiency of notice and was a proper matter for Appellant's motion to quash. The need for such advance notice is clearly demonstrated by the evidence in this case. The escape involved five inmates, each accountable individually and as a party. Three separate weapons were employed which would fall within the State's allegation of "a sharpened metal object," and apparently these weapons changed hands during the course of the escape. The evidence further demonstrated that the escapees accosted two members of the jail staff at different times and locations, only one of whom sustained actual injury. In King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), the en banc decision of the Court of Criminal Appeals reversed a capital murder conviction for failure to allege the identity of the victim of the aggravating kidnapping, aggravated rape and robbery. The alleged murder victim was a male. The court continued to adhere to the rule that the constituent elements of an aggravating res gestae offense are not essential elements of the charged offense. The identity of the victim of the aggravating offense is, however, a fact crucial to the accused's preparation of his defense to the main charge. If such specificity is properly sought by pretrial motion challenging the notice afforded by the pleadings, then the trial court must order the State to comply. King, at 426-427; American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). See also : Goss v. State, 580 S.W.2d 587 (Tex.Cr.App.1979); Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978); Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977); Wallace v. State, 550 S.W.2d 89 (Tex.Cr.App.1977). Ground of Error No. One is sustained.
Our disposition of Ground of Error No. One renders it unnecessary to present any lengthy analysis of the remaining grounds. We do, however, make the following observations for the trial court's guidance upon any retrial of this cause. In Ground of Error No. Two, Appellant contends that evidence of a prior conviction was offered during the punishment phase through the unsworn testimony of a police witness. The record clearly demonstrates that latent fingerprint examiner Sergio Lopez, who identified Appellant as the subject of a penitentiary packet, was never sworn as a witness.
The requirement of an oath is implied by Article I, Section 5 of the Texas Constitution. In civil matters, the error attending failure to swear a witness may be waived by failure to object if both parties are present at the testimony. Cauble v. Key, 256 S.W. 654 (Tex.Civ.App.--Austin 1923, no writ); Trammell v. Mount, 68 Tex. 210, 4 S.W. 377 (1887). In criminal proceedings, there is some suggestion that the error is fundamental and not subject to waiver. The only basis for such a rule, however, is dicta in two cases, not on point with the case at hand. In Bell v. State, 2 Tex.Cr.App. 215 (Tex.Crim.App.1877), the appellate court was dealing with an unsworn written statement of a burglary victim introduced upon the agreement of pre-trial defense counsel who did not represent the defendant at trial. The witness never appeared, depriving the defendant of even physical confrontation, sworn or unsworn. In Santillian v. State, 147 Tex.Cr.R. 554, 182 S.W.2d 812, 812-813 (Tex.Crim.App.1944), the Court of Criminal Appeals evaluated a contention that despite oath, a juvenile witness, not susceptible to punishment for perjury, was not a competent witness. The conviction was affirmed, but the opinion included language that a person not amenable to punishment for perjury was not a competent witness.
In the instant case, Officer Lopez was not subject to prosecution under the perjury provisions of Penal Code Sections 37.02 or 37.03. Nonetheless, he was present in court, confronting the Appellant, and subject to cross-examination by counsel. To treat the absence of an oath under such circumstances as fundamental error would resume an archaic attitude toward function of the oath in presenting evidence to the jury. The oath relates to the credibility of the witness and not the sanctity of the proceeding. Failure to administer the oath is an error easily cured if called to the court's attention, and we consequently hold that such error may be waived by failure to make timely and proper objection. The question remains whether the error was preserved in this case.
It is apparent from the record that the alert defense counsel was aware of the error at its inception and walked the time-honored defensive line of trying to preserve error without provoking a cure. Lopez presented his direct testimony and was not cross-examined. The next witness was an attorney who interpreted the penitentiary packet before the jury. He was cross-examined as to the formal requisites of certification and exemplification, as well as indications of finality of the prior conviction. Following this...
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Beck v. State
...Here the procedural history of the case should be briefly noted. On original appeal the conviction was reversed. Beck v. State, 647 S.W.2d 55 (Tex.App.--El Paso 1983). The Court of Appeals held that the indictment was defective. However, in passing, the Court of Appeals overruled ground of ......
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Beck v. State
...punishment was assessed at 20 years' imprisonment. On appeal the conviction was reversed by the El Paso Court of Appeals. Beck v. State, 647 S.W.2d 55 (Tex.Cr.App.1983). The court found the trial court erred in overruling appellant's motion to set aside the indictment, finding a lack of spe......
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Lister v. State, No. 08-05-00028-CR (TX 3/23/2006)
...less severe than than indicted or charged; he was either guilty of second-degree felony escape or not guilty. Beck v. State, 647 S.W.2d 55, 58 (Tex.App.-El Paso 1983), rev'd on other grounds, 682 S.W.2d 550 (Tex.Crim.App. Lister also suggests that Dotson's failure to report the injuries to ......
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Thomas v. State
...In the May 8, 1992. robbery, the deadly weapon was determined to be a phillips screwdriver. In Beck v. State, 647 S.W.2d 55 (Tex.App.--El Paso 1983, rev'd on other grounds), a screwdriver was found to be a deadly weapon although no injury was ultimately inflicted. In Madden v. State, 628 S.......