Booth v. State, 46456

• Decision Date: 19 September 1973
• Docket Number: No. 46456,46456
• Parties: Gary Mark BOOTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 129

499 S.W.2d 129

Gary Mark BOOTH, Appellant, v. The STATE of Texas, Appellee.

No. 46456.

Court of Criminal Appeals of Texas.

Sept. 19, 1973.

Rehearing Denied Oct. 10, 1973.

Kerry P. Fitzgerald, Dallas (on appeal only), for appellant.

Henry Wade, Dist. Atty., William J. Teitelbaum, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

QUENTIN KEITH, Commissioner.

Appellant was convicted of the offense of robbery upon his plea of not guilty and his punishment assessed at confinement for life. He was represented by counsel of his own choice during the trial of the cause; but, after the return of the verdict, upon his motion, the court appointed counsel to represent him upon appeal.

On the night of October 6, 1970, Mr. and Mrs. J. L. Williams, along with their friends, Mr. and Mrs. Frederic Wagner, met at the Williamses' home in north Dallas, went to dinner, and returned about 10 p.m.

Immediately after parking their car and getting out, four masked men appeared and ordered them at gunpoint to enter the residence. The adults, along with a maid and children, were all forced to lie down upon the floor in the dining room where they were tied with neckties and sheets procured from the upper floor by the robbers. Each of the adults was forced to hand over his money, watch, and jewelry which he had upon his person--all at gunpoint--and Mrs. Williams was required to open the family safe where her jewelry was kept.

After taking thousands of dollars in jewelry, the cash, and other items mentioned, the robbers fled the scene in Mr. Williams' car, leaving the victims tied. Mr. Wagner soon released himself and the others and a prompt report of the robbery was made to the police through the use of the mobile telephone in Wagner's car, the regular telephone service in the Williamses' residence having been temporarily rendered inoperative.

None of the victims was able to identify any of the robbers. This was because the robbers were wearing what was described as 'jump suits' over their regular clothes and ski masks over their faces.

On October 13, 1970, a week after the robbery, Dallas police officers went to a heavily wooded area in the rear of the River Oaks Apartments in the City of Dallas and, using sensitive metal detectors, discovered several bags containing jewelry, foreign currency, paper money, and American coins. In court, Mr. Williams identified several of the jewelry items so recovered as having been taken during the course of the robbery a week earlier. As to one piece of jewelry, his testimony was confirmed by an executive of Neiman-Marcus.

Lieutenant Day, a fingerprint expert of the Dallas Police Department, examined several of the foreign bills on the night of their discovery and testified that he found the fingerprints of one Donald Julius Loerwald upon two of the bills and a small portion of the left thumbprint of appellant upon a five dollar 'Shanghai' bill. Mr. Williams had testified previously that he had procured some foreign currency while upon a trip to the Orient which was kept in his safe at home, oine of which was a 'Shanghai' five dollar bill.

Lieutenant Day was positive that the latent print which he discovered upon the particular piece of currency was that of appellant and, although rigorously cross-examined by counsel for appellant, maintained his position.

Primus Hilman, an accomplice witness, testified that he, Tom Patterson, Mike Brigell, Jimmy Vouras, Donald Loerwald, and appellant actively participated in the robbery, although Brigell remained with their car and did not actually go into the house. He testified that while he was guarding the victims appellant was upstairs where the jewelry and foreign currency were kept. After the robbery they all returned to Loerwald's apartment where they all may have touched the jewelry but only Loerwald and appellant touched the foreign currency.

Appellant was arrested several weeks later in Las Vegas, Nevada, in the company of Loerwald and returned to Dallas. Appellant did not testify in his own behalf and the State used a prior conviction in enhancement of the punishment.

By his first ground of error, appellant contends that the evidence is insufficient to sustain the conviction in that it fails to adequately corroborate the testimony of the accomplice Hilman. The court's charge on accomplice testimony, as well as that on the law of principals, comes to us without objection. And, from our review of the voluminous record, it is clear that the prosecution established the robbery, and through Hilman, appellant's participation therein. However, only by Lieutenant Day's testimony as to appellant's fingerprint upon the Shanghai bill is Hilman's testimony corroborated.

Under Art. 38.14, Vernon's Ann.C.C.P., as interpreted by the authoritative case of Cherb v. State, 472 S.W.2d 273, 279 (Tex.Cr.App., 1971):

'The test of sufficiency of corroboration of the testimony of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense. If there is such evidence, the corroboration is sufficient, otherwise, it is not.' (citations omitted)

The State did not rely upon the fingerprints alone to sustain the conviction but only to corroborate the accomplice by producing evidence of incriminating character which tended to connect appellant with the commission of the offense. In several burglary cases, the Court has held that the fingerprints of an accused, 'which necessarily must have been made at the time of a burglary, have been held sufficient to sustain a conviction without further evidence of identification.' Roach v. State, 398 S.W.2d 560, 562 (Tex.Cr.App., 1966). See also, Howard v. State, 484 S.W.2d 903, 904 (Tex.Cr.App., 1972).

Appellant's reliance upon Dues v. State, 456 S.W.2d 116 (Tex.Cr.App., 1970), is misplaced. It was part of Dues' job to clean up around the store in the area of the broken window and he testified that he did so on the Saturday preceding the finding of the broken window upon Sunday. Although Dues' prints were found upon a part of the broken pane, there was no other evidence in the record which remotely connected him with the commission of the burglary. Judge Onion, testing the record in Dues, found it insufficient to exclude every other reasonable hypothesis except that of Dues' guilt. ¹

It was shown by the State's evidence that appellant's prints could not have been placed upon the Shanghai currency while it was in the possession of Mr. Williams; and, under the testimony of Hilman, Loerwald and appellant were the only ones handling the foreign money. This evidence, taken with the fact that the particular bill upon which the prints were found was located near Loerwald's apartment along with the jewelry taken in the robbery, is sufficient to corroborate Hilman's testimony. Ground number one is overruled.

In ground number two, appellant complains of the action of the trial court 'in failing to grant appellant's motions for continuance.' On February 12, 1971, appellant filed his first motion for continuance based upon the absence of two witnesses; and, on February 15, 1971, he filed a second motion for continuance contending that he had not had sufficient time to retain an expert witness to examine the photograph of his fingerprints which he had procured. Both motions were overruled and the action of the court is made the basis of the one ground of error noted above.

We do not perceive reversible error. One of the witnesses desired by appellant, according to his motion, would have refuted the testimony of the State's witness LaDonna Baumgardner. This witness not having been called by the State, no contradiction was required.

The original motion for continuance was defective in that it did not comply with Art. 29.06, V.A.C.C.P., in several respects. The witness Paul Wyatt, according to the motion, 'is believed to now live in San Antonio, or Austin or Houston,' but the same does not show the diligence, if any, which had been used to secure his attendance. The facts which he expected to prove by the witness are stated only in a conclusory manner; viz., 'the other (Wyatt) can establish his whereabouts that would show he (appellant) could not have participated in the offense (sic).'

Furthermore, there was no proof or affidavit from the absent witness showing what his testimony would have been had he been present. The motion was not a self-proving instrument and nothing is presented for review. Webb v. State, 460 S.W.2d 903, 905 (Tex.Cr.App., 1970); Rolling v. State, 488 S.W.2d 429 (Tex.Cr.App., 1972).

The second motion is likewise deficient under the statute in failing to state that "the defendant has reasonable expectation of procuring the same at the next term of court." Alvarez v. State, 478 S.W.2d 450, 452 (Tex.Cr.App., 1972).

This second motion filed upon the date of trial likewise reflects a want of diligence on the part of appellant's counsel. Having participated in a prior proceeding involving the codefendant Loerwald on December 10, 1970, counsel knew that fingerprints were involved; and, additionally, they knew at least two weeks before the trial that the State was relying, at least in part, upon appellant's fingerprints. The motion fails to show the diligence required by the statute. Kelly v. State, 471 S.W.2d 65, 66 (Tex.Cr.App., 1971). Ground number two does not reflect error and is overruled.

Next, appellant complains of the argument of State's counsel on the guilt-innocence stage of the trial. John David Hay was a defense witness brought to impeach the testimony of the accomplice witness Primu Hilman. Hay and Hilman were cellmates in the jail and the substance of Hay's testimony was that Hilman was trying to work out a 'deal' on his...