Ellis v. State
| Decision Date | 23 June 1971 |
| Docket Number | No. 43944,43944 |
| Citation | 468 S.W.2d 406 |
| Parties | Charles ELLIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Lucas, Hudson & Friedman, by Thomas E. Lucas, Houston, on appeal only, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Ed McDonough, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is burglary with a prior conviction for an offense of the same nature used for enhancement; the punishment, twelve (12) years.
Appellant's appointed counsel on appeal has filed a brief in which he presents all the contentions which he could arguably assert and has furnished the same to the appellant in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
Appellant has filed a lengthy pro se brief. We shall discuss such contentions as we are able to understand in his brief. He first asserts that he was not accorded a speedy trial. We find no mention of an application for a writ of mandamus, or, indeed, any request for a speedy trial. In Gross v. State, 161 Tex.Cr.R. 37, 274 S.W.2d 697, this Court said:
'Having failed, without excuse, to avail himself of the legal remedies, at his command, he may not now rely upon the State's failure to act.'
See also White v. State, 166 Tex.Cr.R. 267, 312 S.W.2d 639; Ortega v. State, Tex.Cr.App., 372 S.W.2d 695; Dagley v. State, Tex.Cr.App., 394 S.W.2d 179; Parker v. State, Tex.Cr.App., 397 S.W.2d 853; and Adams v. State, Tex.Cr.App., 434 S.W.2d 866.
Appellant next contends that since he was indicted under Art. 63 Vernon's Ann.P.C., he could not legally be sentenced under Article 62, V.A.P.C. In Spencer v. State, Tex.Cr.App., 237 S.W.2d 990, we said:
'Absent a showing of bad faith on the part of the State in offering evidence in support of such count (paragraph) relating to the prior conviction, this Court would not feel called upon to reverse a conviction merely because the State failed to make out its case as to said count.'
He next alleges that a prior Harris County conviction was inadmissible because he was not represented by counsel at the examining trial prior to the trial of said cause. Such contention was not advanced at trial and there is nothing to support this pro se assertion. If true, it would not vitiate the conviction. Appellant raises several other contentions in an attempt to show that the prior conviction is void. Appellant has not shown, in this record, sufficient facts to support his allegations.
Appellant's next ground of error relates to cross-examination of his witness, Orlando, about his use of narcotics. The only objection interposed to this question was that the witness had already answered the question.
Appellant next complains of certain remarks by the prosecutor, made during his closing argument, and asserts that these remarks constitute a comment on his failure to testify. The facts must be briefly set out in order to discuss this contention. Clifford Raines testified that his warehouse was burglarized in the evening of June 25, 1967. He received a call from the personnel who handled his burglary alarm system, and went to the warehouse. When he arrived there, he found appellant and another man seated in a police squad car, under arrest and handcuffed.
Houston Police Officer S. E. Ginn testified that he received a call that a burglary alarm had gone off at the warehouse in question and proceeded to the scene. He stationed his trained police dog, Blitz, at a back window, and told him to sit and stay. Ginn then proceeded to the front of the building. Through a glass door, he saw appellant inside the building. Ginn fired a shot at appellant, which missed him, and appellant dropped out of sight. The officer then radioed for help. He then heard his dog bark, and he ran to the back window. At that time he saw appellant jumping out of the window, and he saw Vincent Orlando running away from the building. The dog bit appellant and stopped him, while the officer chased after Orlando. Ginn fired a shot in...
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