O'Dell v. State
Decision Date | 26 May 1971 |
Docket Number | No. 43587,43587 |
Citation | 467 S.W.2d 444 |
Parties | Willie Edmond O'DELL, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Grady Hight, Fort Worth, for appellant.
Frank Coffey, Dist. Atty., Roger Crampton and John Garrett Hill, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of burglary; the punishment, enhanced under Art. 62 Vernon's Ann.P.C., was assessed at 12 years.
The record reflects that the Sherwin-Williams Paint Store, at 2702 West Seventh Street in Ft. Worth, was burglarized between 6 P.M. on April 23rd and the early morning hours of April 24, 1969, and thereafter the building was burned.
Appellant and Elmer Sweeney left the Sundown Lounge, adjacent to the paint store, at approximately 11:30 P.M. Appellant later told Patty Vaccaro, a female companion whom he had accompanied to the lounge, that he had intended to return but Elmer wanted to 'go up on the paint store.' About 30 minutes to an hour after leaving the lounge, appellant was seen in the doorway of the paint store and was then seen going toward the parking lot in a direction away from the door. Appellant then told several people who were standing around to leave the premises and said Elmer was going to burn the place. He asked one of his friends to go get a pickup truck and assisted in getting the pickup near the back door where the store's safe had been removed. Shortly after he directed his friends to leave the parking lot, the paint store building exploded into flames and began to burn. Appellant and Elmer Sweeney ran in a direction away from the store and Sweeney had a camera and a finger support for a filter assembly (later identified as having been in the store) with him. Appellant told some of his friends that there was not enough money taken to split, and was heard to tell Elmer Sweeney that he was stupid for taking the camera. The camera and finger support for a filter assembly were recovered from Sweeney.
Appellant alleges eight grounds of error.
The first ground of error alleges that the trial court erred in refusing permission to discuss the penalty provided by Art. 62, V.A.P.C., during the voir dire examination of the jury. He did not request the voir dire examination be taken by a court reporter, nor does he cite any cases holding such action of the trial court to be reversible error. The question is not properly before this court on appeal. Art. 40.09, Sec. 4, Vernon's Ann.C.C.P.; Martin v. State, Tex.Cr.App., 452 S.W.2d 481; Joseph v. State, Tex.Cr.App., 442 S.W.2d 397. However, if the assignment was before us, no error was committed. Art. 37.07, Sec. 1, V.A.C.C.P. states in part:
'* * * If the plea is not guilty, they (the jury) must find that the defendant is either guilty or not guilty, and except as provided in Sec. 2, they shall assess the punishment in all cases Where the same is not absolutely fixed by law to some particular penalty.' (Emphasis supplied)
Art. 62, supra, states:
'If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.'
Therefore, it would be entirely improper to discuss the result of a punishment that is absolutely fixed by law. The only function of the jury thereunder is to determine if there had been a prior conviction 'of the same offense, or one of the same nature,' of appellant then on trial.
The first ground of error is overruled.
Secondly, appellant contends that the court erred by overruling his motion for a mistrial, made after a member of the Ft. Worth Fire Department stated that a fire was started 'to cover up a burglary.'
The record reflects that T. L. Matthews, an Arson Investigator with the Ft. Worth Fire Department, testified that he arrived upon the scene at approximately 3:20 A.M. and examined the building remains. Thereafter the following appears in the record:
'
'Now, you answer his questions and don't volunteer anything.
'MR. HIGHT: Your Honor, will you please note our exception to the portion of the objection which was overruled.
Considering the portion that was sustained, we would at this time ask the Court to declare a mistrial.
The error from the unresponsive answer was cured by the court's instruction. See Robinson v. State, Tex.Cr.App., 441 S.W.2d 855; Harris v. State, Tex.Cr.App., 435 S.W.2d 502; Moore v. State, Tex.Cr.App., 434 S.W.2d 852; Sligar v. State, 166 Tex.Cr.R. 365, 313 S.W.2d 613; Ramsey v. State, 165 Tex.Cr.R. 409, 308 S.W.2d 26.
The second ground of error is overruled.
The third ground of error is the contention that the trial court improperly refused permission for appellant's brother to testify that an accomplice witness told him that because of his testimony he (the accomplice witness) would be given probation rather than a term in the penitentiary.
The record reflects that appellant requested permission for his brother to testify after his brother, in attendance at the trial, heard the testimony of one of the accomplice witnesses. The trial court held a hearing outside the presence of the jury, and refused to allow appellant's brother to testify. This was a matter within the discretion of the trial court, and appellant cites no authority that such refusal was an abuse of discretion. Appellant's third ground of error is overruled. See Tijerina v. State, Tex.Cr.App., 460 S.W.2d 123; Miller v. State, Tex.Cr.App., 455 S.W.2d 253; Barbee v. State, Tex.Cr.App., 432 S.W.2d 78; 1 Branch's Ann.P.C.2d, Sec. 365.
Appellant's fourth ground of error alleges that the trial court improperly refused his requested charge in which he asked for a jury decision as to whether two witnesses, during the trial, were accomplice witnesses.
The record reflects only that the two state's witnesses were present near the scene of the crime. Such presence alone does not require an instruction on the law of accomplice testimony, nor does it create a presumption that such witness was an accomplice. Miller v. State, Tex.Cr.App., 442 S.W.2d 340; Gregory v. State, 168 Tex.Cr.R. 452, 329 S.W.2d 94; Herrera v. State, 159 Tex.Cr.R. 175, 261 S.W.2d 706; Martin v. State, 151 Tex.Cr.R. 207, 206 S.W.2d 609; Burks v. State, 97 Tex.Cr.R. 113, 260 S.W. 181; 24 Tex.Jur.2d 311--313, Sec. 690.
The fourth ground of error is overruled.
Appellant's fifth ground of error alleges insufficient evidence to support the enhancement portion of the indictment, and that an indictment cannot be used as proof of any fact.
The record reflects that after the verdict of guilty, the enhancement paragraph was read to the jury and the following occurred:
Objections to the enhancement paragraph were waived when appellant pleaded 'true' thereto. The fifth ground of error is overruled.
Appellant's sixth ground of error is that he was not allowed during the hearing on motion for new trial to amend his motion. There is no transcription of the court reporter's notes on motion for new trial, no bill of exceptions, and no bystanders bill. Nothing is presented for review. Art. 40.09, Sec. 6, V.A.C.C.P.; Isaacs v. State, Tex.Cr.App., 403 S.W.2d 409; Jones v. State, Tex.Cr.App., 402 S.W.2d 191.
The sixth ground of error is...
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