David v. State, No. 42663

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtONION
Citation453 S.W.2d 172
Docket NumberNo. 42663
Decision Date18 March 1970
PartiesRoy Earl DAVID, Appellant, v. The STATE of Texas, Appellee.

Page 172

453 S.W.2d 172
Roy Earl DAVID, Appellant,
v.
The STATE of Texas, Appellee.
No. 42663.
Court of Criminal Appeals of Texas.
March 18, 1970.
Rehearing Denied May 13, 1970.

Johnnie Abercia, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Thomas C. Dunn, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is murder; the punishment, death.

The record reflects that shortly before midnight on April 10, 1967, the appellant and one Cornelius Tea entered a drive-in grocery in Harris County, Texas. The lone attendant, Mrs. Judy Moss, recognized them as having been in the store a few minutes earlier. The appellant placed a pistol to her head and forced her to the cash register from which he took money as well as from under the counter. While at the cash register Mrs. Moss pressed a silent alarm connected to the nearby house of the deceased, Bob Farley, her father, who owned the store. As appellant was forcing Mrs. Moss into a back room, she saw the deceased, armed, entering the store. The appellant fired at the deceased, the fire was returned and Mrs. Moss escaped to a nearby service station where she heard other shots being fired. After calling the police she found her father lying on the sidewalk badly wounded.

The cause of death was established as a gunshot wound of the chest.

It was shown that a print lifted from a metal file box near the cash register which Mrs. Moss testified the appellant handled during the robbery was identical with a known fingerprint of the appellant.

The State also introduced appellant's written extrajudicial confession.

In his first ground of error appellant contends it 'was material error for the defendant's name to be entered several different ways on the pertinent papers of the case' resulting in 'material injury.' The body of the indictment reflects appellant's name as 'Roy Earl David.' The judgment and the order overruling the motion for new trial and other papers also reflect the name of appellant as 'David.' 1 Appellant contends his correct name is 'Roy Earl Davis' and that all of his pleadings as well as some of the State's reflect his true name; that the constant reference to the appellant throughout the trial should have 'properly apprised' the court of his true name and that a correction should have been entered.

Article 26.07, Vernon's Ann.C.C.P., provides:

'When the defendant is arraigned, his name, as stated in the indictment, shall

Page 175

be distinctly called; and unless he suggest by himself or counsel that he is not indicted by his true name, it shall be taken that his name is truly set forth, and he shall not thereafter be allowed to deny the same by way of defense.'

At the time of the arraignment appellant made no suggestion as to his true name, nor did he do so when the indictment was read to the jury or at any other time during the trial. 2 Under these circumstances he is in no position to complain for the first time in his appellate brief filed in the trial court. See Article 40.09, Sec. 9, V.A.C.C.P.; Kuykendoll v. State, 165 Tex.Cr.R. 164, 305 S.W.2d 369; Piland v. State, Tex.Cr.App., 47 S.W. 1007; Bargas v. State, 86 Tex.Cr.R. 217, 216 S.W. 172; Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103. See Article 26.07, n. 3, supra.

The appellant, as we understand it, does not contend he is not the person intended to be named in the indictment, but only that his last name was misspelled and should have been corrected by the trial judge. Further, as we view it, 'David' and 'Davis' are idem sonans. We fail to perceive injury.

Ground of error #1 is overruled.

Next, appellant claims the court erred in refusing to allow his counsel to withdraw as attorney of record.

On September 11, 1967, the day when the case was set for trial, the court denied the written motion of appellant's counsel to withdraw due to 'differences' between such attorney and the appellant and the failure of the appellant to pay the fee set.

The following day, after the selection of the jury, appellant's counsel orally renewed his motion based on the fact he had only practiced law two years and had no experience in trying a capital felony case.

In overruling the second motion the court dictated the following into the record:

'Along that line, the Court will put this into the record. On the 25th day of July of this year this case was on the docket. You were in court and made the statement to the Court that full arrangements had not been made at that time for your employment. The Court informed you to talk to the Defendant and inform the Court whether or not arrangements were going to be made and that if not the Court would appoint an attorney to represent the Defendant. You, after talking with the Defendant that date, July 25, 1967, informed the Court that you were the lawyer, you were retained. You were the attorney of record and in addition to this you had a workmen's compensation case for him. This is the state of the record. I don't want the record to show this was a last minute thing.'

The record supports the trial court's statement. Under the facts presented we cannot agree that the court abused its discretion in overruling the motions to withdraw. Schafter v. State, Tex.Cr.App., 436 S.W.2d 352; Garza v. State, Tex.Cr.App., 440 S.W.2d 860. See also Estrada v. State, Tex.Cr.App., 406 S.W.2d 448. The record before us does not support any claim of ineffective assistance of counsel. In fact, the record reflects the competency of appellant's counsel, who still represents the appellant on appeal by appointment which he agreed to accept.

Ground of error #2 is overruled.

Appellant's third ground of error is as follows: 'The Defendant was materially harmed by the refusal of the trial court to grant a motion for mistrial following highly inflammatory, prejudicial remarks by the State's Attorney.'

Page 176

On re-direct examination the witness, Mrs. Moss, was asked what the appellant had said to her after he had obtained the money. She stated, without objection, 'Well, let's see. He said let me feel you and I just ignored it.'

Subsequently she was asked:

'All right, was that concerned with money or anything else? * * * Let me ask you directly then, did he say to you, I want to feel your pussy?'

Appellant's general objection to the question was sustained, the jury was removed and a mistrial was requested upon the basis of the leading, 'inflammatory' question. The mistrial motion was overruled but State's counsel was admonished not to lead his witness.

After the jury's return and the asking of some related questions the following occurred:

'Q. Please state now what he said.

'A. He said let me feel your pussy. That's what he said, the exact words.'

To such question and answer there was no objection and no effort made to have the evidence withdrawn from the jury. When the same question, to which an objection has been previously sustained, is asked again and answered without objection, no error is shown. Fretwell v. State, Tex.Cr.App., 442 S.W.2d 393. Further, the question and answer were entirely proper as they related to statements made by the appellant during the course of a robbery which culminated in the murder charged. Marion v. State, Tex.Cr.App., 387 S.W.2d 56.

On cross-examination appellant extensively inquired of Mrs. Moss as to why she had not testified concerning appellant's remarks at the time of the examining trial. She explained she had not been asked.

Ground of error #3 is overruled.

Appellant next contends the trial court erred in admitting his written confession in evidence against him.

When an objection was interposed to the confession, the court conducted a separate hearing in the absence of the jury to determine its voluntariness and admissibility in accordance with Article 38.22, V.A.C.C.P., 1967. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.

The record reflects that when the 26 year old appellant was arrested on May 7, 1967, he was given the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 warnings by the arresting officer. Within a matter of a few minutes he was taken before a magistrate where he was warned in accordance with Article 15.17, V.A.C.C.P., 1965, then in effect, and the Miranda decision. In response to the magistrate's inquiries appellant...

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34 practice notes
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...offenses under the state's penal laws. See Sasser v. State, 131 Tex.Crim. 347, 98 S.W.2d 211, 212 (Tex.Crim.App.1936); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App.1970), vacated on other grounds in David v. Texas, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 755 (1972); Grant v. State, 505......
  • Tezeno v. State, No. 44331
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 15, 1972
    ...occasions, e.g., Curry v. State, 468 S.W.2d 455 (Tex.Cr.App.1971); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970); Grant v. State, 449 S.W.2d 480 (Tex.Cr.App.1969). Further, an examination of the Constitution of the United States reveals ......
  • Hammett v. State, No. 58453
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1979
    ...testified that each of the photographs fairly and accurately portrayed the scene at the time of his investigation. In David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970), this Court, quoting from C. McCormick & R. Ray, Texas Law of Evidence, Sec. 1465, 2d ed., 1956, " 'Whenever a photograph po......
  • Ex parte Granviel, No. 56267
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 1, 1978
    ...cert. den. 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1972); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972); David v. State, 453 S.W.2d 172, 179 (Tex.Cr.App.1970). It is observed that the constitutionality of executions by hanging or firing squad (Wilkerson v. Utah, supra), by electroc......
  • Request a trial to view additional results
34 cases
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...offenses under the state's penal laws. See Sasser v. State, 131 Tex.Crim. 347, 98 S.W.2d 211, 212 (Tex.Crim.App.1936); David v. State, 453 S.W.2d 172, 179 (Tex.Crim.App.1970), vacated on other grounds in David v. Texas, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 755 (1972); Grant v. State, 505......
  • Tezeno v. State, No. 44331
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 15, 1972
    ...occasions, e.g., Curry v. State, 468 S.W.2d 455 (Tex.Cr.App.1971); Morales v. State, 458 S.W.2d 56 (Tex.Cr.App.1970); David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970); Grant v. State, 449 S.W.2d 480 (Tex.Cr.App.1969). Further, an examination of the Constitution of the United States reveals ......
  • Hammett v. State, No. 58453
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 28, 1979
    ...testified that each of the photographs fairly and accurately portrayed the scene at the time of his investigation. In David v. State, 453 S.W.2d 172 (Tex.Cr.App.1970), this Court, quoting from C. McCormick & R. Ray, Texas Law of Evidence, Sec. 1465, 2d ed., 1956, " 'Whenever a photograph po......
  • Ex parte Granviel, No. 56267
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 1, 1978
    ...cert. den. 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199 (1972); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972); David v. State, 453 S.W.2d 172, 179 (Tex.Cr.App.1970). It is observed that the constitutionality of executions by hanging or firing squad (Wilkerson v. Utah, supra), by electroc......
  • Request a trial to view additional results

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