Bouchillon v. State

• Decision Date: 30 June 1976
• Docket Number: No. 51669,51669
• Citation: 540 S.W.2d 319
• Parties: Larry Dwight BOUCHILLON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 319

540 S.W.2d 319

Larry Dwight BOUCHILLON, Appellant, v. The STATE of Texas, Appellee.

No. 51669.

Court of Criminal Appeals of Texas.

June 30, 1976.

Rehearing Denied Sept. 15, 1976.

Frank W. Sullivan, III, Fort Worth, for appellant.

Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GUPTON, Judge.

The offense is burglary of a building under V.T.C.A., Penal Code, Sec. 30.02; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(b), life.

Although not raised by the brief, we note that appellant executed a waiver of the right to appeal on October 16, 1974, after he had been sentenced. Seven days later, on October 23, counsel filed notice of appeal, withdrawing the prior waiver of right to appeal. On that same date the court ordered the statement of facts be prepared and furnished to appellant and appointed counsel. Since the trial court consented to withdrawal of the waiver of right to appeal within ten days after sentencing, the appeal is properly before this Court. Reed v. State, 516 S.W.2d 680, Tex.Cr.App. Cf. Ex parte Dickey, Tex.Cr.App. (No. 51,405, decided May 4, 1976).

On February 16, 1974, at approximately 9:00 p.m., an officer of the Fort Worth Police Department responded to a silent burglar alarm at the William James Middle School in Fort Worth. Upon his arrival, he walked around the building, checking the doors and windows. He found a window ajar approximately one inch, raised it and put his head inside, at which time he heard breaking and dropping sounds. After several minutes, he shut the window and walked to the other side of the building. He saw a white male, (later identified as Dan Bouchillon) and ordered him to halt. While the man was being frisked, he said, 'My baby brother is inside. Please don't kill him.' As the officer was walking Dan Bouchillon to his patrol car, he observed a second man (later identified as Larry Bouchillon) walking away from the school and apprehended him also.

Other officers arriving on the scene in response to the alarm testified to finding an open door, a door with pry-marks and a broken exterior window pane. Inside the building, they found an interior office door with a broken window pane and on the first floor a dolly with two electric typewriters and an adding machine. A room by room search of the building failed to disclose any other suspects. A screwdriver with the tip broken off and a sock were found in Dan Bouchillon's right coat pocket.

Appellant contends that the prosecutor improperly commented on appellant's failure to testify in his opening argument at the guilt-innocence stage:

'MR. CHANEY: Now the law also instructs that the failure of the defendants to testify should not be taken as a circumstance against him and, of course, in this case they did not testify and you should follow this court's instruction and you should not consider that as any evidence - - -

MR. BLANKENSHIP: Your Honor, we're going to object to this line of argument as being improper. He's commenting to the fact that neither Defendant in this case testified.

THE COURT: I'ill overrule the objection.

MR. CHANEY: The only thing that I can say in relation to that comment is: You have an obligation and the State expects you to fulfill that obligation in following the Court's charge . . .'

Appellant argues this language is closely akin to that held to warrant reversal by this Court in Brumbelow v. State, 122 Tex.Cr.R. 198, 54 S.W.2d 528. In that case the appellant did not testify in his own behalf and the assistant district attorney, after criticizing the appellant for not producing witnesses to explain how he acquired money to purchase an automobile, said:

'I am not talking about defendant's failure to take the witness stand and tell you where he got the money, but his failure to produce witnesses to tell you where he got it. The court tells you, you should not consider his failure to testify and we do not want you to.'

However, language used in the instant case is more similar to that found in Hardy v. State, 496 S.W.2d 635, 638, Tex.Cr.App.:

'Now another thing that is under our Constitution and jurisprudential system, the defendant's failure to testify cannot be taken as evidence against him. He is accorded that privilege, and he has exercised that.'

That statement by the district attorney in Hardy was held harmless error in that it 'did no more than paraphrase the charge of the court.' Hardy, supra, at page 638. Although here the prosecutor did specifically refer to the appellant's failure to testify, he did so in the context of his paragraph by paragraph explanation of the court's charge. He did not ask the jury to consider the appellant's failure to testify against them, but rather cautioned the jury not to do so. Short v. State, 511 S.W.2d 288 (Tex.Cr.App.)

Further, appellant complains that the error was compounded in the State's closing argument:

'MR. BUCKNER: . . . And he says you must exclude--you, the jury, must exclude the hypothesis that the Defendants were walking home. Well, why? I ask you. Why should you exclude it? Is there any evidence that they wre walking home? Certainly not. And he hollers about me going outside the record. I didn't hear anybody say that they were walking home.

MR. BLANKENSHIP: Your Honor, we want to object to this line of argument as being outside the record. There was testimony that Dan Martin Bouchillon was walking south at the time that he was arrested and that would be consistent with the testimony of the witness, Mrs. Bouchillon, who stated she lived--the house which was--

THE COURT: I'll overrule the objection. The jury will recall what the testimony is in that regard.

MR. BUCKNER: Thank you, Your Honor.

THE COURT: Okay.

MR. BUCKNER: You stop and think of if anybody said that they were walking home . . .' (Emphasis Added.)

The objection made at trial was that the argument went outside the record; on appeal appellant contends that this is a further comment on appellant's failure to testify. The ground of error presented on appeal must be the same as the objection raised at trial. Nothing is presented for review. Williams v. State, 531 S.W.2d 606 (Tex.Cr.App.); Reece v. State, 521 S.W.2d 633 (Tex.Cr.App.). However, even if the ground of error alleged had been the same as the trial objection, it is not clear that this language is a comment on appellant's failure to testify. To warrant reversal, the language must be of such character that, when considered from the jury's standpoint, it would necessarily be taken as comment on accused's failure to testify. See Bird v. State, 527 S.W.2d 891, Tex.Cr.App. and cases cited therein. This ground of error is overruled.

Appellant's second ground of error complains of the admission of a 'prison packet' which he contends contains hearsay and irrelevant information. There was no hearsay objection raised at trial:

'MR. BLANKENSHIP: . . . (W)e object . . . for the reason that it contains judgments and sentences in causes which are not alleged in the indictment and are not relevant to the issue at bar . . . They are reasonably calculated to elicit information--supply information to the jury to arouse and inflame the cool reflection and passion of ordinary human beings so as to bias them unduly against the defendants in this cause.'

Nothing is presented for review because the hearsay ground of error does not comport with the trial objection. Williams, supra; Reece, supra. Additionally, the trial objection did not specify which portions of the lengthy prison packet were objectionable. It was not error to overrule an objection that was too general to advise the trial court of that portion of the exhibit to which the objection was directed. Boss v. State, 489 S.W.2d 582, Tex.Cr.App.; Burton v. State, 471 S.W.2d 817, Tex.Cr.App.

Appellant contends the trial court erred in overruling appellant's motion to quash the indictment due to the disqualification of two grand jurors returning the indictment. The record reflects that a grand jury commissioner appointed her daughter-in-law and her husband's niece as grand jurors. Appellant contends 'a violation of the anti-nepotism statute ¹ renders a grand juror morally unfit under Art. 19.08, V.A.C.C.P.' Appellant's challenge to the array of the grand jury...