Casias v. State

• Decision Date: 01 April 1970
• Docket Number: No. 42817,42817
• Parties: Emilio Gutierrez CASIAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 483

452 S.W.2d 483

Emilio Gutierrez CASIAS, Appellant, v. The STATE of Texas, Appellee.

No. 42817.

Court of Criminal Appeals of Texas.

April 1, 1970.

Joe V. Boerner, Jr., Lubbock (Court Appointed on Appeal), John R. McFall, Lubbock (Court Appointed on Appeal), for appellant.

Blair Cherry, Jr., Dist. Atty., and Robert B. Wilson, Asst. Dist. Atty., Lubbock, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is robbery by assault; the punishment, life.

Appellant contends the State failed to prove the corpus delicti and the evidence is insufficient to sustain the conviction.

Omitting the formal parts, the indictment charged that appellant on or about November 1, 1967,

'did then and there unlawfully in the County and State aforesaid, in and upon Mrs. J. H. Wilson make an assault; and did then and there, by the said assault, and by violence to the said Mrs. J. H. Wilson, and by putting the said Mrs. J. H. Wilson in fear of life and bodily injury, and then and there fraudulently, and without the consent of the said Mrs. J. H. Wilson, take from the possession of her, the said Mrs. J. H. Wilson, good and lawful United States currency, the same being then and there the corporeal personal property of the said Mrs. J. H. Wilson, with the intent then and there to deprive the said Mrs. J. H. Wilson, of the value of the same, and to appropriate the same to his, EMILIO GUTIERREZ CASIAS' own use * * *.'

The trial of the case was complicated by the inability of the complaining witness to testify as a result of injuries received. The State relies upon appellant's confession and the law of circumstantial evidence.

The record reflects that on the morning of November 1, 1967, Lubbock police officers found 'Mrs. Wilson' lying in a blood-splattered room in a house at 1309 7th Street in the city of Lubbock. She was 'one bloody mess' and a blood stained hammer was discovered nearby. The house had been ransacked and apparently thoroughly searched.

Mrs. J. H. (Hettie) Wilson was shown to have been admitted in critical condition to the Methodist Hospital in Lubbock on November 1, 1967. She had multiple compound depressed skull fractures, a broken arm and was near death. Surgery followed.

Helen Lieb testified that Mrs. J. H. Wilson had lived at 1309 7th Street in Lubbock on November 1, 1967, and that she had seen her in the Lubbock Methodist Hospital shortly after that date; that Mrs. Wilson was at the time of the trial 76 years old and in a nursing home in Albany, Texas, being cared for by Mrs. Lieb's mother and aunt; that Mrs. Wilson was like a child and had never mentioned the incident of November 1, 1967; that she was physically unable to be present at the trial.

Omitting the warnings and formal parts, appellant's extrajudicial confession reads as follows:

'I wish to say that last night that I Sleep in a car next to Brooks Super market. Today I got up and started walking looking for somewhere to break into because I needed a shot, I walked by a house and the front door was open and I went into the house and there was A old woman sitting in the living room and I asked her for her money. She said that she wasn't going to give it to me and I saw a hammer Laying in the floor and I picked it up and hit her with it. I think I hit her three times. I don't know what made me hit her but I did hit her. I then searched the house and the only money I found was some in a cloth sack and it was all in change. After I searched the house I left and went to a grocery store and had the man there at the store to call a Cab. The Cab came and picked me up and took me to 30th and Ave A where he let me out and I walked over to the house where the police picked me up. I changed my shirt and shoes at the house and then the man that lives at the house wanted to go to the grocery store and get some groceries and I went with him. When we returned back to the house that is when the Police picked me up. I wish to say that I am A addict and that I was needing a shot and that is the reason that I broke into the house was to get me some money to buy me some Heroin. I can read the English language and this statement is true and correct.'

Other evidence showed that the appellant appeared at a Lubbock grocery store approximately a block and a half from 1309 7th Street on the morning of November 1, 1967, with stains on his hands, handed an employee there a dime and requested he call a taxi cab. The taxi driver testified he picked up the appellant at the grocery store and took him to the address at which he was subsequently arrested and related he had been paid by the appellant $1.15 entirely in change. The appellant was later arrested on November 1, 1967, at 30th and Ave A Streets in Lubbock, with a pocketful of change, either $3.00 or $5.00.

The blood on the hammer was shown to be type O human blood which was the same blood type possessed by Mrs. Wilson and the appellant.

'In establishing the corpus delicti, the confession may be used in connection with the other facts and circumstances, that is, the confession may be used to aid the proof of the corpus delicti, and the corpus delicti may be proved by circumstances as well as by direct evidence. Watson v. State, 154 (Tex.)Crim. (R.) 438, 227 S.W.2d 559.' 5 Branch's Ann.P.C., 2nd ed., Sec. 2596, pp. 28--29; 24 Tex.Jur.2d, Evidence, Secs. 675 and 730.

The court charged the jury on the law of circumstantial evidence and we conclude that evidence, viewed in the light most favorable to the State as we are required to do, is sufficient to sustain the jury's verdict. We specifically reject appellant's claims that (a) the evidence failed to show that the Mrs. Wilson found at 1309 7th Street was the Mrs. J. H. Wilson alleged in the indictment, (b) the evidence was insufficient to show lack of consent by Mrs. J. H. Wilson to the taking of her property and (c) the evidence was insufficient to show that currency taken, if any, belonged to Mrs. J. H. Wilson.

The question of whether the evidence supports the allegation that appellant took 'good and lawful United States currency' is without merit in light of the evidence that appellant confessed he took change, that he paid the cab driver with coined money, and was later found in possession of change or coined money.

'Currency' is defined in Black's Law Dictionary, 3rd ed., as 'coined money and such bank notes or other paper money as are authorized by law and do in fact circulate from hand to hand as the medium of exchange.'

'Current money' is defined in the same authority as '(t)he currency of the country; whatever is intended to and does actually circulate as currency; every species of coin or currency.'

'The terms 'money' and 'current money of the United States' include gold, silver and other minor coins, bank bills, legal tender notes, gold and silver certificates, and every kind of paper currency which passes current as money under the guarantee of the United States.' 5 Branch's Ann.P.C., 2nd ed., Sec. 2824, p. 335.

While the Texas cases have not always been consistent, the better view seems to be that adopted in Brittain v. State, 52 Tex.Cr.R. 169, 105 S.W. 817, where the court said:

'Currency, or lawful currency, is broad enough, under the decisions as we find them, to include gold and silver, as well as what we usually term 'paper currency."

In Brittain, a theft from person prosecution, the indictment alleged 'two dollars in money, lawful currency of the United States of America * * *' and the evidence showed two silver dollars were taken.

Grounds of error #2 and #3 are overruled.

In his fourth ground of error appellant contends the trial court erred in admitting appellant's extrajudicial confession which contained admission of 'other or extraneous offenses.' Appellant relies upon that portion of the written confession which reads:

'Today I got up and started walking looking for somewhere to break in because I needed a shot. * * * I wish to say that I am A addict and that I was needing a shot and that is the reason that I broke into the house was to get me some money to buy me some Herion.'

The fact that a person has the status of being a narcotic addict has not been considered a crime since the decision of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. See also Salas v. State, Tex.Cr.App., 365 S.W.2d 174, cert. dism. 375 U.S. 15, 84 S.Ct. 96, 11 L.Ed.2d 45; Ex parte Rogers, Tex.Cr.App., 366 S.W.2d 559; Article 725c, Vernon's Ann.P.C.

Further, an intent to commit a crime (i.e., the possession of heroin) in absence of an overt act does not normally constitute the commission of an offense.

In Sustaita v. State, Tex.Cr.App., 396 S.W.2d 381, it was held that admission into evidence of portions of the defendant's confession relating to reasons and means whereby he was armed and at the theater on the night of the shooting was not for the purpose of proving extraneous offenses and was not reversible error in a murder prosecution. Assuming the objection was sufficient, we overrule ground of error #4.

And for the same reasons set forth above, the trial court did not err in failing to instruct the jury as to extraneous offenses contained in the confession.

Ground of error #5 is overruled.

Further, we cannot agree that the court erred in refusing to instruct the jury relative to the allegedly exculpatory statement contained in the confession introduced by the State. Appellant relies upon the statement 'I don't know what made me hit her, but I did hit her.' Such statement when read in the context in which it is found in the confession is not such as to have required the court to have charged as desired by the appellant. In 23 Tex.Jur.2d, Evidence, Sec. 116, p. 116, it is written: 'The State need not disprove such statements if they are actually not sufficient to exculpate the defendant or if other circumstances exist to connect him with the offense charged.' We think the charge given...