Bilbrey v. State

• Decision Date: 23 January 1980
• Docket Number: No. 1,No. 58476,58476,1
• Citation: 594 S.W.2d 754
• Parties: Gerald Robert BILBREY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 754

594 S.W.2d 754

Gerald Robert BILBREY, Appellant, v. The STATE of Texas, Appellee.

No. 58476.

Court of Criminal Appeals of Texas, Panel No. 1.

Jan. 23, 1980.

Rehearing Denied March 19, 1980.

Ted Redington, Dallas, for appellant.

Henry Wade, Dist. Atty., T. Michael Sutton, Michael E. Keasler, and Michael R. Gillett, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ.

OPINION

DOUGLAS, Judge.

Bilbrey was convicted of aggravated robbery. Upon a finding of "true" by the jury to allegations of two prior convictions, punishment was assessed at life under V.T.C.A., Penal Code, Section 12.42(d).

Appellant now contends that the testimony of his accomplice, Dennis Wichmann, was not corroborated sufficiently to support the verdict.

Jess McBride, manager of Guy's Cut Rate Drive-In, testified that, after Wichmann had robbed him and co-workers at gunpoint and had taken a paper bag with the proceeds of the robbery to Bradford Ficke's Volvo automobile, he took a pistol and followed Wichmann outside. He testified that he looked around carefully because Wichmann had stated that his confederate was outside with a shotgun.

Upon seeing Wichmann and a second party whom he did not identify in or about Ficke's car, McBride fired his pistol and both persons fled onto a highway bridge connecting Dallas with Irving.

Officer M. S. Richardson testified that after he received a call to respond to a robbery at Guy's, he encountered McBride in the parking lot and was told that the men were fleeing across the bridge.

Richardson testified that when he turned on his red light as he approached Bilbrey on the bridge Bilbrey threw a brown paper sack over the bridge rail and then began to climb over the rail himself, looked down, and stopped. The bridge at that point was some thirty to forty feet above the river bed below.

Officer J. E. Long testified that he was behind Officer Richardson and that Richardson pointed out to him the spot where Bilbrey had thrown the sack over the rail. Long later aimed a light down from that spot and saw the sack on a sand bar and pointed it out to an officer, who retrieved it.

The sack contained the money stolen from McBride, Ficke and the cash register, as well as McBride's and Ficke's wallets.

Richardson testified that, upon his apprehension, Bilbrey asked if Richardson would take care of a Pontiac automobile parked on the Irving side of the bridge, towards which Bilbrey and Wichmann had been running. The automobile was registered to Bilbrey's father but displayed stolen license plates.

Neither the pistol displayed by Wichmann nor the shotgun Wichmann testified Bilbrey had carried was found.

The evidence of Bilbrey's flight, the car secreted across the bridge and displaying stolen license plates, and the possession by Bilbrey of the fruits of the crime sufficiently corroborate Wichmann's testimony that the robbery was a jointly planned and executed venture.

Bilbrey next contends the court erred in refusing his requested instruction that mere presence is insufficient to corroborate accomplice testimony.

Bilbrey presented no evidence. No testimony presented by the State raised the issue of mere presence. Only Officer Richardson identified Bilbrey, and his testimony shows that Bilbrey was fleeing with the fruits of the crime. Where no testimony raises the issue of mere presence, no instruction is required. Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977).

Appellant also contends the court erred in its instructions by failing to apply the law of parties to the facts.

Appellant's objection at trial stated merely that "(the court's charge) fails to adequately (sic) apply the law to the facts." The objection is not specific enough to apprise the court of what is complained of and presents nothing for review. Article 36.14, V.A.C.C.P.; Chavira v. State, 167 Tex.Cr.R. 197, 319 S.W.2d 115 (1958); Bryant v. State, 163 Tex.Cr.R. 463, 293 S.W.2d 646 (1956); Soto v. State, 161 Tex.Cr.R. 239, 275 S.W.2d 812 (1955).

Neither was the failure to apply the law of parties to the facts fundamental error. In Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978), we addressed the same question:

"A charge on the law of parties enlarges a defendant's criminal responsibility. The charge benefits the State and not the defendant. See Ransonette v. State, 550 S.W.2d 36, 42 (Tex.Cr.App.1977). In a case where a charge on the law of parties is applicable, it is usually the State that insists on and is entitled to have such a charge, including an application of the law to the facts, submitted to the jury. Such a charge fits the State's theory of a case when, as in this case, a co-defendant is the principal actor and the defendant is guilty, if at all, as a party because he solicited, encouraged, directed, aided, or attempted to aid the co-defendant. However, if the court fails to apply the law of parties to the facts of the case, it might be better trial strategy for the defense counsel not to ask for such a charge. It might very well be to the benefit of such a defendant not to have the State's theory so clearly blue-printed and delineated by a charge applying the law of parties to the facts. It would permit the defendant to make a stronger jury argument that the State had not proved its case since the evidence clearly showed that appellant did not shoot the deceased."

Appellant's contention is overruled.

Bilbrey next contends that the court's refusal to permit appellant to elicit testimony from Wichmann about Wichmann's conviction for burglary in California in 1973 violated appellant's right to confrontation under the Sixth Amendment. Testimony outside the presence of the jury shows that Wichmann successfully served a three-year probation upon that conviction.

Article 38.29, V.A.C.C.P., provides that:

"The fact that a defendant in a criminal case, or a witness in a criminal case, is or has been, charged by indictment, information or complaint, with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment, information or complaint a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired. In trials of defendants under Article 36.09, it may be shown that the witness is presently charged with the same offense as the defendant at whose trial he appears as a witness."

Appellant cross-examined Wichmann at length about possible prejudice resulting from his own involvement in and indictment for the instant offense. He elicited that Wichmann had been offered an eight-year sentence upon agreeing to testify, in contrast to a previous offer of thirty years for a plea of guilty. He now contends that he should have been permitted to examine Wichmann about the burglary conviction to show a general lack of truthfulness.

Appellant cites Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in support of his contention. In Davis, the Supreme Court held that to refuse to allow cross-examination of a witness about a juvenile probation which had not expired so as to show motive and bias because of possible pressure upon the witness by the prosecution violated the accused's right to confrontation. But the Court in Davis repeatedly distinguished between the use of a prior conviction merely to show lack of truthful character and its use to show bias or motive:

"We granted certiorari in this case to consider whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent when such an impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency. (Emphasis supplied)

" * * *

"In opposing the protective order, petitioner's counsel made it clear that he would not introduce Green's juvenile adjudication as a general impeachment of Green's character as a truthful person, but, rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. * * * Green's record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green's good character into question. (Emphasis supplied).

" * * *

" . . . One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness' credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence § 940, p. 775. (Chadbourn rev. 1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496 (79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377) (1959) (Footnotes omitted)

" . . . The claim of bias which the defense sought to develop...