Davidson v. State

• Decision Date: 01 February 1956
• Docket Number: No. 27919,27919
• Citation: 288 S.W.2d 93,162 Tex.Crim. 640
• Parties: Bobby Emmett DAVIDSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 93

288 S.W.2d 93

162 Tex.Crim. 640

Bobby Emmett DAVIDSON, Appellant, v. The STATE of Texas, Appellee.

No. 27919.

Court of Criminal Appeals of Texas.

Feb. 1, 1956.

Frank D. Wear, Paris, for appellant.

Leighton Cornett, County Attorney, Paris, Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is burglary, the indictment alleging a prior conviction of an offense of the same nature; the punishment, enhanced under Art. 62, P.C., being 12 years in the penitentiary, Vernon's Ann.P.C. art. 1397.

The evidence shows that about 1:45 A.M. on March 20, 1955, it was discovered that Eaglebarger's Service Station and Tire Store, in Paris, Texas, had been burglarized, entry having beem made through a slatted door or window panel.

An iron safe had been moved from the office into the back portion of the building and the knob knocked off. Nitroglycerin jelly had been applied and caps and wires leading therefrom prepared, but the nitroglycerin had not been exploded.

Appellant and one Billy Dabbs were arrested the following morning on a Paris street.

That the burglary occurred and the safe was readied for opening by the use of an explosive is not questioned. Appellant's identity as one of the parites who committed the offense was the disputed issue at the trial.

The State's evidence by which appellant is shown to be a party to the burglary consists of the following.

Herbie Franklin Farris, an accomplice witness, testifying for the State, said that the burglary of the service station and tire store in Paris was planned in Dallas by appellant, Billy Dabbs, Gene Wynn and himself; that they came to Paris in Gene Wynn's car after going to Dabbs' home to get some tools, wire and blasting caps.

The witness Farris and Gene Wynn were arrested in Paris around 3 or 4 A.M. after appellant and Dabbs left the car, and Farris testified that he next saw appellant in jail.

Charles Endsley, age 18 and a senior in school, testified that he saw appellant 'crossing the street in front of the Goodyear Store * * * as he ran across the street in front of my car,' and that prior thereto he saw two men at the window of Eaglebarger's Service Station.

Endsley further testified that the two men stood at a window, then walked up the street and around the corner, and he went the same way to his car. The witness identified one of the men he saw after he turned the corner as being appellant, but having lost sight of the men and because he did not see his face before, he was unable to identify appellant as one of the two men he saw at the tire store, one of whom 'had his arm in the window.'

When appellant and Dabbs were arrested the officers 'noticed the kness of their pants were dirty and the palms of their hands were greasy and black.'

Scrapings from the soles of their shoes and trousers were sent to the Department of Public Safety at Austin, with scrapings from the floor of the service station and tire store at the front of the safe. The officers observed that the scrapings from appellant's shoes and those from in front of the safe both contained 'small flakes of something of a green color.'

Charles Smith, chemist for the Department of Public Safety, testified that he examined the two specimens and made a comparison of them, to see if there was any similarity between the two, and found that each contained two types of paint, of two colors. 'One specimen was of two paints, an emerald green and a black background and the other was the same.'

Following the route traveled by appellant, according to other witnesses, Officer Lloyd Matthews testified that he 'found two flashlight batteries, electric cap and wires and a stick of nitroglycerin jelly.'

The remaining testimony pointing to appellant as one of the guilty parties has been reserved for discussion until last because appellant's first and principal ground of appeal is directed to a part of the examination of this witness.

Bobby Love, 17 and a junior in Paris High School, testified that he was in company with Charles Endsley and saw appellant crossing the street by the Firestone Store in company with another boy, and that he first saw them 'By the side of Eaglebarger's Service Station * * * at the window on the east side * * *. They were right up against it, at the corner. * * * Just saw them standing in the corner.'

Bobby Love identified both appellant and his companion as the men he was testifying about.

On cross-examination the witness Love testified that he first noticed someone near Eaglebarger's 'as we walked out the alley' but at that time could not identify him; that he 'didn't see either Dabbs or Davidson at that time so you could recognize them by the side of Eaglebarger's.' 'Q. Not willing to tell the jury you saw them and could recognize them at the side of Eaglebarger's Service Station? A. Not at the side; no. No, sir.'

The re-direct examination of the witness Bobby Love is as follows:

'Q. State whether, or not, you recognized them the first time you saw them as the men you saw on the street that night? A. The first time I saw them on the corner.

'Q. The first time you saw them in jail, you pointed out these two men? A. Yes, sir.

'Q. Tell the jury whether, or not, the two men you saw in the light on Lamar Avenue are the same two men you saw by the side of Eaglebarger's tire and service station? A. Yes, sir.

'Mr. Wear: He already testified to facts he couldn't identify them being the same. We object to it.

'The Court: Overruled.

'Q. What is your answer? A. They walked up the street.

'Q. The same two men you saw there walked up the street and later you could see and identify them in front of that light? A. Yes, sir.

'Mr. Wear: We object to that and ask that all the answer be stricken.

'The Court: Overruled.

'Mr. Wear: Note our exception for the reason it is not responsive and the testimony shows the witness is not qualified to make the statement and further, by his own testimony, he could not testify as a fact; further, the question is leading and placing in the witness' mouth words he wanted him to say. May we have our exception on that basis?

'The Court: Yes.

'Mr. Wear: The defendant moves the Court to exclude from the jury and instruct them not to consider for any purpose the answer of the witness to the last question, which was that they were the same men he saw at Eaglebarger's window, at the window in Eaglebarger's building, for the reason the witness previously testified to facts contradictory to such statement, and permitting the State to impeach its own witness and the question was leading and suggesting the answer desired by the County Attorney; further, the witness' testimony would be a matter of opinion as to a matter not the subject of opinion, and we ask the Court to instruct the jury not to consider it for any purpose.

'The Court: Overruled.'

The objections and motion quoted are presented in argument of appellant's counsel as his principal point on this appeal, and in his brief as the second point.

It will be observed that each of the questions was answered before any objection was made, and that the motion to exclude was limited to the answer to the last question.

But assuming that objections were timely and sufficient, we see no error in the matter which would call for reversal.

As we understand the testimony of this witness, he first saw appellant so as to recognize him and be able to identify him as he was crossing the street and was walking up the street which was lighted, according to other witnesses, with 'new Mercury lights', but that he had seen the same two men at and near the burglarized premises prior to their crossing the street.

Appellant defended on the ground of alibi, offering testimony of the effect that he was in Dallas at the time the building was entered and the explosive set.

In the light of the testimony of the witness Bobby Love on direct and cross-examination, and of appellant's theory of defense, the re-direct examination was not of such character as to call for reversal.

The previous conviction alleged in Paragraph 3 of the indictment having been established by proof, appellant requested a special charge be given in connection with the law of circumstantial evidence, to the effect that such prior conviction and the evidence relating thereto could not be considered by the jury as any circumstance bearing upon the guilt or innocence of appellant with respect to the burglary for which he was on trial.

In Paragraph 13 of the court's charge, the jury was instructed as follows: 'You are further charged that even though you may find and believe from the evidence beyond a reasonable doubt that the defendant was finally convicted for the offense of burglary as charged in paragraph number three of the indictment herein, yet you are instructed that you cannot consider such conviction, if any, or any evidence relating thereto, if any, for any purpose whatsoever in passing upon the guilt, if any, or innocence, if any, of the defendant for the offense of burglary charged in paragraph number one of the indictment.'

In view of this instruction, the refusal of the requested charge was not error.

There are other attacks upon the charge but they cannot be considered because not properly raised by objection and exception, or requested charge.

That portion of the indictment which alleged the prior conviction which was submitted to the jury begins as follows: 'And the Grand Jurors aforesaid do further present that prior to the commission of the aforesaid primary offenses by the said Bobby Emmett Davidson, to-wit: on the 19th day of February, A.D. 1953, in Criminal District Court No. 2 of the Dallas County, Texas, the said Bobby Emmett Davidson was duly and legally convicted of an offense of the same nature * * *.'

Appellant excepted to the paragraph mentioned, contending that the language quoted charged the commission of the primary offense on the 19th day of February, 1953, and does...