Dillard v. State, 44193

• Decision Date: 14 December 1971
• Docket Number: No. 44193,44193
• Citation: 477 S.W.2d 547
• Parties: David Randall DILLARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 547

477 S.W.2d 547

David Randall DILLARD, Appellant, v. The STATE of Texas, Appellee.

No. 44193.

Court of Criminal Appeals of Texas.

Dec. 14, 1971.

Rehearing Denied March 29, 1972.

Gerry O'Malley Walsh, Thomas D. Prichard, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder with malice. The jury assessed the punishment at fifteen years.

The sufficiency of the evidence is not challenged.

At approximately midnight March 10, 1968, the appellant and Louis Adrian Teal, both white males, 'dated' two Negro prostitutes. The deceased, Wanda Martin, engaged Teal in sexual intercourse while at the same time appellant and Ilene Alexander were so engaged. The acts took place in a white 1959 Chevrolet driven by Teal. There witnesses, including Ilene Alexander, testified to these events. Appellant and Teal left the area and returned later around 2:00 or 3:00 a.m. This time the appellant 'dated' the deceased and Teal left the car to talk with other prostitutes. Suddenly Teal ran to the car, got in and drove away with the deceased still in the car.

Around 7:00 a.m. of the same morning Cordia Anderson found the body of Wanda Martin across the street from her house. Officer Andrew Belovsky of the Houston Police Department testified that he went to the scene pursuant to a call and found the deceased wearing a pair of go-go boots, a short skirt, a sweater covering her head, and a wig on the ground near her head. Wanda Martin was dead when Officer Belovsky arrived. Officer W. C. Romund testified that he arrived around 7:30 a.m., and found the body cold and stiff. Dr. Joseph Jachimczyk, Chief Medical Examiner for Harris County, testified that an autopsy performed on the body of the deceased revealed that she died from two .22 caliber gunshot wounds in the head.

Allen Milton Hobbs testified that both appellant and appellant's brother told him that appellant had killed a Negro prostitute. Hobbs further testified that about a week before May 31, 1968, he was in an automobile driven by Teal with appellant in the right front seat. Hobbs and two others were in the back seat. Appellant had Teal stop the car and appellant shot five or six times at two Negro men. Later the same night (or early morning) appellant again had Teal stop the car and appellant shot twice into the stomach of a Negro man standing by the side of the car.

On September 17, 1968, the Juvenile Court of Harris County conducted a hearing, waived jurisdiction of the appellant (who apparently was sixteen years old at the time), and certified its action to the Criminal District Court under the provisions of Article 2338--1, Section 6, Vernon's Ann.Civ.St. The appellant filed a timely notice of appeal. On October 28, 1968, the 176th Judicial District Court conducted an examining trial and bound the appellant over to the grand jury. An indictment was returned on October 31, 1968. The Court of Civil Appeals in Dillard v. State, 439 S.W.2d 460 (Tex.Civ.App.1969, writ ref'd n.r.e.), held the cases to be moot and all previous orders were set aside since appellant became seventeen years of age while his appeals were pending. ¹

In his first ground of error the appellant contends the trial court erred in overruling his motion to set aside the indictment because the waiver of jurisdiction and order of certification were moot and, hence, the indictment was invalid. We understand appellant's argument to be that the Court of Civil Appeals' holding the cases to be moot and setting aside all previous orders effectively voided the waiver and certification of the juvenile court so that the grand jury was without jurisdiction to indict the juvenile. We do not so construe this as the meaning of the Court of Civil Appeals' holding. That Court said, '(t)he juvenile court has no Further power to act in these cases.' (Emphasis added) 439 S.W.2d at 462. It did not hold that the Previous orders of the juvenile court were void. Appellant's first ground of error is without merit.

In his second ground of error appellant contends the trial court erred in overruling his motion to set aside the indictment for the reason that in his appeal of the juvenile court's waiver and certification he asserted that the juvenile court had not complied with four of the statutory procedural requirements and the Court of Civil Appeals did not hold the waiver and certification valid. In Buchanan v. State, 453 S.W.2d 479, we upheld the indictment of a sixteen year old where 'all the statutory procedural requirements had been complied with before and upon the transfer of his case from the Juvenile Court prior to return of the indictment.' Id. at 480. Since the Court of Civil Appeals never held the appellant's certification to be Invalid we must accept it as valid. An appeal in juvenile cases lies with the Court of Civil Appeals, not with this Court. Article 2338--1, Section 21, V.A.C.S.; In re Garcia, 443 S.W.2d 594 (Tex.Civ.App.1969).

Appellant's third ground of error contends the trial court erred in denying appellant an examining trial. The contention is without merit because the record shows appellant stipulated that an examining trial was held prior to the indictment.

In his fourth ground of error the appellant complains of the grand jury's lack of knowledge of the procedure if they failed to indict him. Appellant's claim is that upon failure to indict him he would have automatically been remanded to juvenile jurisdiction for rehabilitative measures until he reached 21 years of age. Article 2338--1, Section 6(k), V.A.C.S., provides:

'If the child's case is brought to the attention of the grand jury and the grand jury does not indict for the offense charged in the complaint forwarded by the juvenile court, the district court or criminal district court shall certify the grand jury's failure to indict to the juvenile court. Upon receipt of the certification the juvenile court May resume jurisdiction of the child.' (Emphasis added.)

Since the juvenile court 'may' resume jurisdiction it is discretionary and not automatic. Further, the question did not arise since the grand jury did indict the appellant. We will not review the mental processes of the grand jurors. His fourth ground of error is without merit.

In his fifth ground of error the appellant complains that the court erred in admitting into evidence two subsequent extraneous offenses. An accused should be tried on the merits of each case, and proof of extraneous crimes is not admissible if it could only show that he was a criminal generally. See 1 Branch's Ann.P.C., Section 188, pp. 202--203, and cases there cited.

In 4 Branch's Ann.P.C.2d, Section 2538, page 870, is found:

'Proof of other offenses is admissible if such proof is a part of the res gestae of the alleged offense for which defendant is being tried, or if it tends to show intent when intent is an issue, or serves to prove identity when identity is an issue, or when it is sought to show the guilt of defendant by circumstantial evidence and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory.'

In the present case the extraneous offenses were admitted for the purpose of identity, a recognized exception to the general rule. Owens v. State, Tex.Cr.App., 450 S.W.2d 324. If, however, the testimony of the State leaves no question as to identity, proof of an independent crime is not admissible for that purpose. Hafti v. State, Tex.Cr.App., 416 S.W.2d 824. Eyewitnesses positively identified the appellant as being present earlier in the evening near the hotel and having sexual intercourse with one of the witnesses while his companion had sexual intercourse with the deceased. He was also identified as the person 'dating' the deceased later that night and as being present in the automobile when the deceased was abducted. However, no witness testified that he saw the killing. The only evidence connecting the...