Bennett v. State

• Decision Date: 19 November 1969
• Docket Number: No. 42270,42270
• Citation: 450 S.W.2d 652
• Parties: Billy Jack BENNETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 652

450 S.W.2d 652

Billy Jack BENNETT, Appellant, v. The STATE of Texas, Appellee.

No. 42270.

Court of Criminal Appeals of Texas.

Nov. 19, 1969.

Rehearing Denied Feb. 4, 1970.

Second Rehearing Denied March 11, 1970.

McCown, Sheehan & Dubuque, by Louis T. Dubuque, Dumas, for appellant.

Jerry R. Tucker, Dist. Atty., Dumas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 8 years.

The indictment alleged that appellant and Joe Bob Bennett (his brother), did on or about September 19, 1966, in Moore County, Texas, burglarize a cafe owned and operated by Mrs. Anitta Boswell. A motion for severance was granted and the two defendants were tried separately. Convictions at a prior joint trial were reversed by this court in Bennett v. State, Tex.Cr.App., 422 S.W.2d 438.

The evidence shows that the cafe was burglarized between the hours of 6:00 P.M. September 19th and 8:00 A.M. September 20th. Entry was gained by breaking a window at the south end of the building, and traces of blood and glass were found inside the premises. A juke box and cigarette machine were broken into and coins were taken therefrom. Several coins which had been marked with fingernail polish were found scattered on the floor, together with a partial package of Camel cigarettes stamped with a South Dakota tax sticker, and a cigarette lighter bearing the initials 'JBB.' Investigating officers also uncovered a fresh set of footprints at the southwest corner of the building. Plaster casts of these prints were introduced in evidence.

Appellant and Joe Bob Bennett were arrested in a vehicle belonging to appellant on September 21, 1966, in the City of Amarillo. They were searched and officers recovered $7.55 in coins from Joe Bob Bennett, some of which had been marked with fingernail polish the same color as that found on the coins at the scene of the crime. Later that afternoon appellant's car was searched by a detective of the Amarillo Police Department. As a result of the search the officer recovered several packages of Camel cigarettes bearing South Dakota tax stickers, and two pairs of brown cotton gloves. One glove was covered with blood and was found to contain 'a piece of fingernail.' The evidence shows that appellant had injured the fingernail on the middle finger of his left hand shortly before he was arrested. Blood was also found on the driver's seat of appellant's automobile.

In his first ground of error appellant contends that the trial court erred in admitting into evidence the coins found on the person of his co-defendant, Joe Bob Bennett, for the reason that the state failed to prove a conspiracy between the two defendants.

Ground of error No. 2 complains that the court erred in failing to charge the jury on the law governing conspiracy.

Appellant and Joe Bob were together in the car when the coins were found on Joe Bob's person. This and the other evidence found elsewhere in the car was admissible to show appellant's participation as a principal in the burglary.

Under this record the admissibility of the coins found in the pockets of the co-defendant did not rest upon proof of a conspiracy, and the court did not err in admitting such evidence or in failing to charge the jury on the law governing conspiracy.

Appellant's third ground of error contends that the search of his automobile was unreasonable and the evidence obtained from the search was not admissible, as it was the result of an illegal search and seizure. The record reflects that appellant's car was stopped for a traffic violation. The Amarillo Police, at the time the two defendants were stopped, had received notice from the Moore County Sheriff's office of warrants for the arrest of the occupants, a description of the car, and a pickup order on the same. All of this information was radioed to the patrolman as he was stopping the automobile. Immediately after appellant was brought into the police station he was given a complete statutory warning regarding his rights. The record reflects that he then gave his consent to have the Amarillo Police search his automobile.

Having consented to the search of his automobile, the appellant waived the necessity of a search warrant or a showing of probable cause, and is in no position to complain of the search. Giacona v. State, 397 S.W.2d 863 (Tex.Cr.App.1965); Merwin v. State, 172 Tex.Cr.R. 244, 355 S.W.2d 721, cert. denied, 371 U.S. 913, 83 S.Ct. 259, 9 L.Ed.2d 172. The fact that appellant was under arrest at the time he consented to the search did not render inadmissible the fruits of the search. Weeks v. State, 417 S.W.2d 716 (Tex.Civ.App.1967), cert. denied, 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494.

Sentence was pronounced September 17, 1968, and notice of appeal was given.

On September 27, 1968, a motion for new trial was filed alleging receipt of other testimony and jury misconduct.

While the court heard evidence offered by appellant, he made it clear that he did so at the request of counsel for the defense in order that there be a record to send to this court, whether it be considered evidence offered in support of the motion for new trial or in the form of a bill of exception.

The court's order disposing of the belated motion for new trial recites that the defendant had waived the time in which to file a motion for new trial, had been sentenced and had given notice of appeal which had not been withdrawn, and overruled the motion because it was not timely filed.

The defendant having waived the time to file motion for new trial, and sentence having been pronounced, the trial court was under no obligation to permit the motion for new trial to be filed. Bedell v. State, Tex.Cr.App., 443 S.W.2d 850.

We note further that neither the affidavit attached to the motion nor the testimony adduced reflects more than a casual reference to the fact that the defendant did not testify.

The motion for supported by affidavit of a juror to the effect that during the deliberations of the jury and prior to a final vote on guilt or innocence of the defendant, 'the following statements were made in the presence of the jury: 'One of the jurors stated that this was a re-trial of a former conviction of this defendant.' 'One of the jurors made the statement that the defendant did not take the stand and testify in his own behalf."

The rule applicable is set forth in Graham v. State, 123 Tex.Cr.R. 121, 57 S.W.2d 850, and Smith v. State, 52 Tex.Cr.R. 344, 106 S.W. 1161:

'We think the true rule is that where, as in this case, the testimony supports the verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it be set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant's case.'

See also Garza v. State, Tex.Cr.App., 368 S.W.2d 213; Johnson v. State, Tex.Cr.App., 366 S.W.2d 560.

No reversible error appearing, the judgment is affirmed.

MORRISON, Judge (concurring).

Since the testimony as to the alleged jury misconduct was not properly before the court, I concur in the affirmance of this conviction, Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Judge.

On rehearing appellant complains for the first time of the trial court's failure to give him credit on his sentence for the time spent in confinement. He relies upon North Carolina v. Pearce--Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, followed by this Court in Ex parte Ferrell, Tex.Cr.App., 445 S.W.2d 729. See also State of Missouri v. Carter, 443 S.W.2d 176 (Mo.).

At appellant's first trial, the jury assessed his punishment at eight years' confinement in the Texas Department of Corrections. Such conviction was set aside on appeal. Tex.Cr.App., 422 S.W.2d 438. Upon retrial following a verdict of guilty, the judge also assessed punishment at eight years' confinement but expressly refused to give the appellant credit for any time spent in confinement. Whether such reference was to pre-sentence or post-sentence custody, or both, is not clear from the record.

Article 42.03, V.A.C.C.P. (former Article 768), provides as follows:

'If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant except when his presence is not required by Article 42.02 at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment; provided that in all criminal cases the judge of the court in which the defendant was convicted may within his discretion, give the defendant credit on his sentence for the time, or any part thereof, which said defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court; and provided further, that in all cases where the defendant has been tried for any violation of the laws of the State of Texas, and has been convicted and has appealed from said judgment and sentence of conviction, and where said cause has been affirmed by the Court of Criminal Appeals, and after receipt of the mandate by the clerk of the trial court, the judge is authorized to again call said defendant before him; and if pending appeal, the defendant has not made bond and has remained in jail pending the time of such appeal, said trial judge may then in his discretion resentence the defendant, and may subtract from the original sentence pronounced upon the defendant, the length of time the defendant has lain in jail pending such appeal, noting any credit allowed upon the...