Davis v. State

Decision Date19 June 1968
Docket NumberNo. 41340.,41340.
PartiesHarby Lewis DAVIS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Donald D. Koons, Dallas (On Appeal Only), for appellant.

Henry Wade, Dist. Atty., Dallas, Arch Pardue, Tom Reese, Malcolm Dade and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.



The offense is robbery; the punishment, fifteen years.

Ground of error No. 1 is that the court permitted the state to connect the appellant with extraneous offenses during the presentation of the state's case in chief.

Officer Brumley of the El Dorado Arkansas Police Department testified that he arrested the appellant in El Dorado. For reversal appellant relies upon the following testimony of Officer Brumley given during his direct examination by the state:

"Q What final disposition did you make of the prisoners?
"A We arrested them.
"Q After they were arrested?
"A Well, we had information, we had a lot of burglaries.
"Appellant's Counsel: Your Honor, we object.
"The Court: Sustain the objection and instruct the Jury not to consider that for any purpose.
"Appellant's Counsel: At this time we ask for a mistrial.
"The Court: Denied.
"Appellant's Counsel: Not our exception."

The general objection, stating no grounds, was sustained and the court instructed the jury not to consider the testimony for any purpose. The request for mistrial without any grounds being given therefor, was denied. In light of the record, no reversible error is shown. Ground of error No. 1 is overruled.

The admission of appellant's written statement into evidence is urged as ground of error No. 2 for the reason that it was obtained as the result of an illegal arrest.

The testimony of the state reveals that this conviction is for the robbery of a food store in Dallas by three men about 8 a. m., August 27, 1966. After the El Dorado Police Department had received several calls from merchants in El Dorado on September 2, 1966, they began looking for an automobile bearing a Texas license and occupied by three men. M. C. Darby and Grover Weaver were soon found near the automobile and Weaver told Officer Brewster that he owned the car. Darby and Weaver were arrested. About 11:45 a. m., September 2, 1966, the appellant was arrested in attempting to escape from a residence in El Dorado. Officer Thomason of Dallas arrived in El Dorado about 3 p. m., September 4, 1966, with an arrest warrant issued September 3, for the appellant, took him into custody and they arrived in Dallas about 11 p. m., that day.

The appellant was taken before a magistrate about noon, September 5, 1966, who properly warned him. On September 6, 1966, and before his interrogation and making of a written statement, the appellant was warned by Officer Potts, who completed taking his statement in forty-three minutes. (Officer Potts was off duty on September 4th and 5th.) These warnings appear to be in compliance with the provisions of Arts. 15.17 and 38.22, Vernon's Ann.C.C.P. The appellant had a copy of the statement at the time it was read to him by Potts and before he signed it in the presence of a non-police witness.

The written statement includes the warning which was given the appellant by the magistrate at the time he appeared before him. It also includes the warning given by Officer Potts prior to the making and signing of the statement. The warnings appear to include all of those given as shown in the written statement set out in Hill v. State, Tex.Cr.App., 429 S.W.2d 481, dated June 12, 1968.

There is no evidence in the record of the use of any promises, coercion, lengthy interrogation, incommunicado incarceration, or that he was deprived of his capacity for self determination.

To the admission in evidence of the written statement the appellant objected on the grounds that it was not properly witnessed and was the result of an illegal arrest. In his brief he relies alone upon the ground of illegal arrest.

No issue as to the voluntary character of the written statement was raised by the evidence in the trial court.

It is the illegal detention and not an illegal arrest which under certain...

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6 cases
  • Romo v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 18, 1977
    ...I cannot agree that error, if any, in the charge in the instant case constitutes fundamental error. In Davis v. State, 430 S.W.2d 210 (Tex.Cr.App.1968), defendant and two others were convicted of robbing a store's cashier. They were charged in a single count indictment with "acting together......
  • Brewer v. State
    • United States
    • Texas Court of Criminal Appeals
    • June 14, 1978
    ...Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (1929); Fine v. State, 125 Tex.Cr.R. 337, 68 S.W.2d 192 (1934); Davis v. State, Tex.Cr.App., 430 S.W.2d 210 (1968); Smith v. State, Tex.Cr.App., 450 S.W.2d 92 (1970); Hannon v. State, Tex.Cr.App., 475 S.W.2d 800 ...
  • Murray v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 13, 1974
    ...Lacefield v. State, 412 S.W.2d 906 (Tex.Cr.App.1967); see also De Leon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971); Davis v. State, 430 S.W.2d 210 (Tex.Cr.App.1968); Pearson v. State, 414 S.W.2d 675 In this case the Court held an extensive voluntariness hearing outside the presence of the ju......
  • Jefferson v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 23, 1974
    ...Morgan v. State, Tex.Cr.App., 502 S.W.2d 722 (delivered December 5, 1973); Bayless v. State, Tex.Cr.App., 492 S.W.2d 588; Davis v. State, Tex.Cr.App., 430 S.W.2d 210; Lacefield v. State, Tex.Cr.App., 412 S.W.2d 906, and cases therein cited. Appellant does not contend that he was illegally d......
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