Garcia v. State

• Decision Date: 23 June 1976
• Docket Number: No. 51483,51483
• Citation: 537 S.W.2d 930
• Parties: Guadalupe GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 930

537 S.W.2d 930

Guadalupe GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 51483.

Court of Criminal Appeals of Texas.

June 23, 1976.

Bill Wischkaemper, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty. and Davis A. Hess, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The appellant, while in custody charged with a felony, escaped by the use of a deadly weapon. He was convicted for that offense and the jury assessed punishment at imprisonment for 8 years.

The appellant contends the trial court erred in (1) granting the State's motion to amend the indictment; (2) refusing to grant appellant's motion for change of venue; (3) refusing to grant appellant's motion requesting that he be tried on previous charges in order in which they were filed; (4) allowing the State to refer to and allude to an iron bar in the presence of the jury; (5) admitting in evidence a piece of sheet with blood on it; (6) failing to charge the jury on the lesser included offense of escape from custody without the use of a deadly weapon; (7) cumulating appellant's sentence; and (8) denying appellant the right to open and close the jury arguments at the punishment stage of the trial.

The record reflects that on July 12, 1974, the appellant was incarcerated in the Lubbock County Jail, having been previously charged with the felony offense of aggravated rape. On July 17, 1974, the appellant and ten other prisoners sawed through a bar of their cell with a hacksaw blade, struck the jailer with the sawed off bar, tied him up with a sheet and effected their escape. A short time later appellant was apprehended and returned to jail.

The appellant contends the trial court erred in granting the State's motion to amend the indictment after both parties had announced ready. Appellant relies on Article 28.10, V.A.C.C.P., which provides as follows:

'Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.'

The grand jury returned an indictment which alleged, in pertinent part, that the appellant

'. . . did then and there after being charged with and convicted of a felony offense, to-wit: Aggravated Rape, did intentionally and knowingly escape from custody, to-wit: Lubbock County Jail, Lubbock County, Texas, and the said GUADALUPE GARCIA did then and there to effect his escape intentionally and knowingly use a deadly weapon, to-wit: a metal bar from that in the manner of its use and intended use was capable of causing death and serious bodily injury.'

After the State had announced ready and the appellant had announced ready subject to the court's ruling on pending motions, the trial court granted the State's 'motion to amend' the indictment by deleting the phrase 'and convicted of'; after the deletion the indictment alleged that the appellant 'did then and there after being charged with a felony offense, to-wit: Aggravated Rape, . . .' etc.

While the trial court granted what the State referred to as a 'motion to amend' the indictment, there was in fact no amendment such as would invoke the provisions of Article 28.10, V.A.C.C.P.; the State was merely abandoning one of its theories of prosecution.

Appellant was charged under V.T.C.A. Penal Code, Section 38.07; that section provides as follows:

'(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.

'(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.

'(c) An offense under this section is a felony of the third degree if the actor:

'(1) is under arrest for, charged with, or convicted of a felony; or

'(2) is confined in a penal institution.

'(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape.'

The constituent elements of the offense are that a person (1) escape, (2) from custody, (3) after having been arrested for, charged with or convicted of an offense. Where there are several ways or means by which an offense may be committed set forth in the same statute and those ways or means are subject to the same punishment they may be charged conjunctively in one count. 30 Tex.Jur.2d, Indictment and Information, Sec. 42, p. 610; Watkins v. State, 153 Tex.Cr.R. 559, 223 S.W.2d 24 (1949). Therefore, an indictment charging the offense of escape may properly allege conjunctively in one count that the escape from custody was effected after the actor was Arrested for, charged with, and convicted of an offense. Allegation and proof of any of the three statutory reasons for the accused's being in custody will suffice to support a conviction for the offense of escape.

Appellant was initially charged with having escaped from custody after having been 'charged with and convicted of' a felony offense. The State, by means of a 'motion to amend' the indictment, merely abandoned its theory that appellant escaped from custody after having been Convicted of a felony offense; regardless of how the State chose to denominate its motion, the effect thereof was a proper abandonment of one of the theories charged. This case is unlike Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), where the State was erroneously allowed to amend a duplicitous indictment by deleting descriptive allegations; the amendment there was held to be one of substance and violative of Article 28.10, V.A.C.C.P. Here there was no amendment, but merely an abandonment of one of the ways or means by which the offense could be committed. No violation of Article 28.10, V.A.C.C.P., has been shown. This ground of error is overruled.

Appellant next complains of the trial court's failure to grant a change of venue. The trial took place in the 140th District Court of Lubbock County; the offense was committed in Lubbock.

At the hearing on the motion for change of venue, appellant called as witnesses a number of people in the news media, including representatives of a local newspaper, local television stations, and local radio stations. Copies of articles concerning the offense were placed in evidence. Broadcast journalists, when called as witnesses, read aloud the news items concerning the offense in issue which their stations aired in the days following the escape. We find, from a review of these articles and broadcasts, that they present a fair, non-inflammatory account of the offense and its surrounding circumstances published for the purpose of informing the public of current events.

James Stewart, district supervisor for the Beverage Sales Company and a former Lubbock police officer, was the only witness who even approached stating that the appellant could not get a fair trial in Lubbock County; he stated, 'I feel right now it might be a little difficult.' Most of the witnesses called by both the State and the appellant indicated that they thought appellant could get a fair trial in Lubbock County.

The record of the voir dire of the jury panel is before us; it reflects that none of the veniremen were disqualified and that the only venireman challenged for cause was so challenged by the State. further, many of the members of the jury panel indicated that they had not read or heard anything concerning the case.

The applicant for a change of venue has a heavy burden of proving there exists such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful. Absent such a showing, the trial judge is well within the limits of his discretion in denying the change of venue. Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975); Ward v. State, 427 S.W.2d 876 (Tex.Cr.App.1968). Having considered the evidence introduced at the pretrial hearing, examined the contents of the newspaper, television and radio coverage in evidence, and read the voir dire of the jury panel and noticed the lack of difficulty in securing a qualified jury, we conclude that the court did not abuse its discretion in overruling appellant's motion for a change of venue. This ground of error is overruled.

Appellant next complains of the trial court's action in overruling his motion to require the State to try cases pending against him 'in the order in which the(y) . . . were filed.' Appellant insists that the State should have been required to first try the cases for which he was being confined at the time of the commission of the instant offense before trying him in the case at bar for the offense of escape. In substance, it is appellant's contention that the court erred in calling the case for trial out of numerical order.

The matter of calling cases for trial on the docket is within the discretion of the trial judge. Rae v. State, 423 S.W.2d 587 (Tex.Cr.App.1968); Sowers v. State, 157 Tex.Cr.R. 345, 248 S.W.2d 949 (1952); Wechsler v. State, 172 Tex.Cr.R. 559, 361 S.W.2d 379 (1962). We perceive no abuse of discretion. This ground of error is overruled.

In three grounds of error, the appellant contends the trial court erred in allowing the State to refer to the sawed off iron bar used during the jailbreak. It is appellant's contention that the iron bar was never shown to have been a deadly weapon as that term is defined in the Penal Code and, further, that the condition of the bar had changed and the chain of custody had been broken.

The indictment returned against appellant alleged that he effected his escape by the use of 'a deadly weapon, towit: a metal bar that in the manner of its use and intended use was capable of causing death and serious bodily injury.' It was therefore incumbent upon the State to show the use of a metal bar in such a fashion as to come within the definition of 'deadly weapon' contained in V.T.C.A. Penal Code, Sec. 1.07(a)(11). T...