Carey v. State

Decision Date17 June 1970
Docket NumberNo. 42777,42777
Citation455 S.W.2d 217
PartiesAlfreddie CAREY and Jesse Lee Brager, Appellants, v. The STATE of Texas, Appellee
CourtTexas Court of Criminal Appeals

Weldon Holcomb and Rex Kirby, Tyler (on appeal only), Marshall Spivey, Tyler (court-appointed), for appellants.

Hunter B. Brush, Dist. Atty., and F. R. Files, Jr., Asst. Dist. Atty., Tyler, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is burglary with intent to commit theft; the punishment, five years' confinement in the Texas Department of Corrections for each appellant.

The indictment jointly charged the appellants Carey 1 and Brager, Earnest Charles Gardner and Richard Arterberry. Gardner pled guilty, Arterberry was granted a severance and the appellants were jointly tried and convicted from which conviction this appeal is taken. It does not appear that the two appellants (who were cousins) ever sought a severance.

Initially, appellants challenge the sufficiency of the evidence to sustain their convictions.

Grady Wilson testified he and his brother owned and operated the Troup Feed and Supply Company in Troup, Texas; that after the place of business had been locked and secured on the night of August 3, 1967, someone broke into the building and knocked the door off a safe therein and took approximately $800; that he had the care, custody and control of the building and did not give anyone consent or permission to break and enter the business establishment. His brother, Vernon Wilson, gave similar testimony. They both related the appellant Brager had been a former employee.

Co-indictee Gardner testified that he, Arterberry and the two appellants, all of whom had gone to school together, planned the burglary on the night in question; that they pried open the door of the feed store and took turns using a sledge hammer to open the safe and divided the money taken therefrom.

It was shown that the appellant Carey was arrested in Dallas on January 11, 1968, and returned to Smith County.

The separately taken extrajudicial confessions of each appellant were offered into evidence. In such statements each appellant confessed to his participation in the alleged crime with his co-defendant and the details recited therein were substantially the same as the testimony of the co-indictee Gardner. Each appellant testified and while admitting signing the confessions denied any part in the alleged burglary. The appellant Carey offered testimony as to alibi.

Viewed in the light most favorable to the jury's verdict, as we are required to do, we conclude that the evidence was sufficient to sustain the verdict. The evidence sufficiently corroborated the testimony of the accomplice witness Gardner as required by Article 38.14, Vernon's Ann.C.C.P. See Edwards v. State, Tex.Cr.App., 427 S.W.2d 629.

Next, appellants contend '(t)he trial court committed fundamental error in admitting in the absence of a proper predicate evidence obtained from the accomplice witness Gardner.'

On cross-examination of Gardner it was established that he had given a written statement to the district attorney in October, 1967, and his testimony was 'the same thing' as his statement. Upon request the statement was handed to counsel for the appellant Carey. Thereafter no effort was made to use such statement for cross-examination and possible impeachment. The statement was not introduced nor was any effort made to make it a part of the record. There is no showing that the statement was used before the jury by the prosecution so as to bring into play the 'use before the jury' rule, see Rose v. State, Tex.Cr.App., 427 S.W.2d 609, and certainly there was compliance with the Gaskin rule (Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467).

It appears to be appellants' rather novel contention that the statement was an extrajudicial confession of the witness Gardner and that since it could not have been used against him without a showing of a compliance with the requirements of Article 38.22, V.A.C.C.P., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, etc., and that since his (Gardner's) testimony in the case at bar was predicated upon such statement or confession implicating the appellants, it was incumbent upon the State to prove that such statement was taken in accordance with Article 38.22, supra, Miranda, etc., before Gardner should have been permitted to take the witness stand and testify for the State. This is the appellants' contention despite the fact that there was no objection on this ground.

Appellants would have us hold that a necessary predicate for the testimony of any accomplice witness who has previously confessed is a showing that such confession was legally taken. We decline to so hold.

Next, appellants contend the court erred in admitting the extrajudicial confessions of the appellant Carey and the extrajudicial confession of the appellant Brager.

When the voluntariness of such confessions was challenged the trial court conducted a Jackson v. Denno hearing in the absence of the jury to determine the admissibility of the same. See Article 38.22, V.A.C.C.P.

At the conclusion of such hearing the trial judge filed his findings of fact and conclusions of law and admitted the confessions into evidence. His findings are clearly supported by the evidence.

The record reflects the appellant Carey made his first confession after having been given an 'officer's warning' and signing a waiver. The following day after he was taken before a magistrate and warned in accordance with Article 15.17, V.A.C.C.P., he was also warned by the assistant district attorney who took his second statement in accordance with Article 38.22, V.A.C.C.P. After appellant Carey executed a waiver of his rights, the second statement was taken. All of the warnings given were sufficient to comply with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The waiver contained in both of Carey's confessions reads as follows:

'I do not have a lawyer and do not want one, either hired or appointed at this time. I want to waive my right to remain silent and to have a lawyer present, and I want to make this statement.'

Such boilerplate statement is supported by a separately executed waiver attached to the 'officer's warning' and the testimony of the witnesses.

The court found '(t)hat each and all of the waivers signed and executed by the said defendant Alfreddie Carey was done freely and voluntarily and the statements or confessions made by him were freely and voluntarily made and each and all of said instruments were signed by the said defendant Alfreddie Carey without any kind or character of persuasion or compulsion. * * *'

It seems to be appellant Carey's chief complaint that the court failed to find that the waivers were, in addition to being voluntarily made, also knowingly and intelligently executed. While the use of such words as 'knowingly, intelligently and voluntarily' in the court's findings in connection with the waiver of rights are desirable in light of the Miranda decision and Article 38.22, Sec. 1(c)(3), V.A.C.C.P., their absence is not fatal. The record supports the fact that the waivers in question were also intelligently and knowingly made despite the 21 year old appellant Carey's contention that he could not read even though he quit school while in the 11th grade, or the officer's testimony he decided to read one of the statements to him.

We likewise reject appellant Brager's similar contention as to the court's findings as to waiver. And we find no merit in his claim that the warnings given him were not sufficient to meet the requirements of Miranda.

The voluntariness of the confessions was raised by testimony offered in the jury's presence and the issue was submitted in the court's charge. The jury was told if it found or had reasonable doubt of the voluntariness to wholly disregard and not consider the confessions for any purpose. The appellants complain that the court erred 'in failing to require the jury to find beyond a reasonable doubt that the confessions were voluntarily made.' See Article 38.22, V.A.C.C.P.

There were no objections to the charge or special requested charges in accordance with Articles 36.14 and 36.15, V.A.C.C.P. Nothing is presented for review. See also Article 36.19, V.A.C.C.P.

The remaining grounds of error present the more difficult questions of this appeal.

There the appellants contend the trial court erred in admitting the alleged confession of the co-defendant Brager into evidence against the appellant Carey and vice versa. They cite and rely upon Garcia v. State, 126 Tex.Cr.R. 523, 72 S.W.2d 1098; Burns v. State, 123 Tex.Cr.R. 213, 57 S.W.2d 836; Ex parte Suger, 149 Tex.Cr.R. 133, 192 S.W.2d 159. Further, they claim the court failed to give proper limiting instructions in its charge.

The State recognizes the General rule that a confession of guilt can only be used against the person giving the confession and is inadmissible against others under the hearsay rule. See Schepps v. State, Tex.Cr.App., 432 S.W.2d 926, 940; McCormick & Ray, Texas Law of Evidence, 2nd ed., Sec. 1219, p. 96; 24 Tex.Jur.2d, Evidence, Sec. 667, p. 272. The State urges, however, that the confessions were admitted only against the appellant giving the same and not against the other. The State calls attention to the fact that the issues of the voluntariness of the confessions were submitted to the jury in separate paragraphs of the charge in which the particular confession referred to was shown to have been admitted 'against him' which has reference back to the particular appellant who gave that confession. There was no objection to the confessions on the grounds now alleged or to the charge nor any request for further limiting instructions in accordance with Articles 36.14 and 36.15, V.A.C.C.P. See Dennis v. State, Tex.Cr.App., 420...

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    ...* * to the extent that they allow introduction of the principal's confession in the trial of the accomplice * * *."); Carey v. State, Tex.Cr.App. 1970, 455 S.W.2d 217, 220. And contrary to the majority's statement in footnote 10 of its opinion, Chapman v. State, Tex.Cr.App.1971, 470 S.W.2d ......
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