Cook v. State, 51560
Decision Date | 09 June 1976 |
Docket Number | No. 51560,51560 |
Citation | 537 S.W.2d 258 |
Court | Texas Court of Criminal Appeals |
Parties | Roger Glenn COOK, Appellant, v. The STATE of Texas, Appellee. |
George Michael Jamail, Beaumont, for appellant.
Tom Hanna, Dist. Atty., and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
In a trial before a jury, appellant Roger Glenn Cook was convicted of possession of heroin, a controlled substance. Punishment was assessed at seven and a half years.
On the night of September 26, 1973, Billy Broadway, acting night manager of a 7--11 grocery store in Port Arthur, observed appellant and his companion, Harry Cook, steal several packages of pressed ham from the meat cooler. After paying for other groceries, but not for the meat which was concealed in appellant's pants, the two men left in a car. When Broadway again saw the same two men in the store on the night of September 28, 1973, Police Officer Golden in a patrol car was stopped and notified of the theft of September 26. Golden saw appellant and Harry Cook leave the store and enter a car parked by the side of the store and start the motor. Although, as shown by the testimony of Golden, the car belonged to Harry Cook, appellant occupied the driver's seat, with Harry Cook on the passenger's side. Golden asked them for their names, and then by use of his police radio ran an 'outstanding warrant' check and learned that there was a warrant for appellant's arrest on a charge of aggravated assault. Appellant was arrested on the charge of shoplifting of the meat and also on the outstanding warrant. Harry Cook was also arrested for shoplifting. The two arrested men were taken to the police station, where they were 'booked' for shoplifting of the meat, and appellant was also booked on the outstanding warrant. The car was driven to the 'impound garage,' connected to the police department.
Officer Golden testified that:
He said this was the mandatory procedure of the Port Arthur Police Department. In pursuance of such policy, after the car was impounded Officer Golden, after listing its license number, color and description, entered it to determine 'you know, valuables in it' and inventory them. He saw in clear view in the opened ashtray 'in the front part of the car on the dashboard in the center' a brown Anacin bottle, and upon lifting the bottle, he saw a piece of foil rolled up inside it. Recognizing from his experience with such matters that heroin is generally sold wrapped in foil, he made further search of the driver's seat and, underneath it, he found a white paper sack containing a brown bottle with a clear liquid in it, two syringes and some cotton balls. All of these items, as well as others, were listed on his inventory sheet, and turned over to the detective department.
It was stipulated that the rolled foil paper in the Anacin bottle contained heroin.
In his sixth ground of error, appellant complains of certain jury argument of the prosecuting attorney at the guilt stage. Appellant contends the court reversibly erred in overruling his motion for a mistrial due to such argument.
The record reflects that appellant and Harry Cook were jointly indicted for this offense. Both were represented by the same attorney. When the case was called for trial, the jury panel being present in the courtroom, appellant's motion to sever, to the granting of which the State in open court agreed, was sustained, and appellant alone was placed on trial.
The record reflects the following proceedings during the prosecuting attorney's closing argument at the guilt stage:
'I want you to recall before I start into anything--when you were sitting out there the other day--you were sitting out there and we got ready to pick a jury and there were two people in this courtroom, this defendant and another defendant. You had an opportunity to look at them and you saw them and you saw Mr. Jamail request of the Court a severance so that they be tried separately.
'MR. JAMAIL (Defense): Your Honor, I object to this. That's a matter of law.
'And he requested of the Court that a severance be granted. Now, our law is strange in that area. It's unique and in some cases where two people are charged with the commission of the same crime you can't try them both at the same time. That's the way the law reads, and it's a matter of fact. It's something we have to live with.
'Mr. Jamail represents both of those men.
'He was here and answered for both of them when the Court called the case.
'I want you to imagine what Mr. Jamail is going to say when we try Harry Cook.
'Well, the old way of doing it is to blame it on the other guy. He blames it on Harry and Harry blames it on him, and hopefully, they can convince two juries of Jefferson County citizens that the other guy did it, and they both walk out of here laughing. Now, that's what it's about, and that's what you've got, and that's why you've got a severance in this case. That's what you're looking at.
'Respectfully submitted.
Appellant had a legal right to file a motion for severance (see Art. 36.09, V.A.C.C.P.), which was recognized by the State when it agreed that the motion should be granted, and by the court when it granted the...
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