Gordon v. State

• Decision Date: 26 May 1982
• Docket Number: No. 1,Nos. 61674,61675,s. 61674,1
• Citation: 633 S.W.2d 872
• Parties: John Richard GORDON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 872

633 S.W.2d 872

John Richard GORDON, Appellant, v. The STATE of Texas, Appellee.

Nos. 61674, 61675.

Court of Criminal Appeals of Texas, Panel No. 1.

May 26, 1982.

Rehearing Denied June 23, 1982.

Neil Siegel, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and Steven R. Hatch, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Consolidation of prosecutions for offenses against property defined in V.T.C.A. Penal Code, Title 7, is authorized by id., Chapter 3, but such "innovation" may cause more problems than it is intended to solve, ¹ as these two consolidated causes demonstrate.

Both are alleged by indictment to be burglary of respective habitations during the month of April 1978. Our Cause No. 61,674 is number 31923-34 in the trial court; it pertains to burglary of the habitation of one Diane S. Robinson on or about April 17, 1978, in the manner denounced by V.T.C.A. Penal Code, § 30.02(a)(1); the indictment also avers a prior conviction for enhancement of punishment. Our Cause No. 61,675 is number 31936-34 in the trial court; it involves burglary of the habitation of one Madeline Sheldon on or about April 5, 1978, in the manner proscribed by id., § 30.02(a)(3). They were consolidated for trial by the trial court on motion of the State, apparently without objection, and together proceeded to trial on announcements of ready October 17, 1978.

However, after the jury had been selected and in its presence appellant pleaded not guilty in our Cause No. 61,675-"the Sheldon case"-when the indictment in our Cause No. 61,674 was read-"the Robinson case"-appellant seems to have surprised some by entering a plea of guilty. The jury was retired, the trial court properly admonished appellant, including the possible range of enhanced punishment, and accepted his plea of guilty to the primary offense, understanding that his plea would be "not true" to the enhancement allegation. With the jury back in the courtroom, the State then made an opening statement to the effect that its order of presentation would be first the Sheldon case, in which a plea of not guilty had been entered, followed by evidence going to the Robinson case. And that is the way the two cases were tried.

Before finding appellant guilty of both burglaries, however, the jury became perplexed over its functions and responsibilities in the premises. Since sufficiency of the evidence in the Sheldon case is challenged, we will summarize enough of it to determine that issue and at the same time provide a backdrop to the first of several problems the jury would create. ²

Ms. Sheldon testified that at about 11:15 p. m. in the evening of April 5, 1978, "this young man," ³ appellant, came to the door of her residence and inquired about some people who lived on her street and where Laramie was; she directed him "up north." Fifteen or twenty minutes later he returned and asked leave to use her telephone; she opened the door and let him in. Ms. Sheldon saw him dial and heard him "pretend that he was talking to someone." That done, appellant turned, shook her hand, thanked her for the hospitality and announced, "I'm going to take your stereo." When she protested, appellant showed Ms. Sheldon a hand with brass knuckles. Appellant disconnected the stereo, tucked it under his arm and commanded Ms. Sheldon to get her pocketbook, but when she said she had no money appellant ran out with the stereo.

Across the street, a female neighbor and her boy friend were in a parked car. They watched every move made by appellant from outside the Sheldon residence from the time he first approached it until he hurriedly departed with "some kind of square object" under his arm, and then called the police.

The State then presented witnesses to testify to the admitted burglary and its aftermath in the Robinson case. ⁴ As soon as the State rested, appellant moved for a directed verdict of not guilty in the Sheldon case in that she had given appellant permission to enter her residence, so his taking the stereo constituted theft, but not burglary. The State argued that appellant had "lured his way into her house under the pretense of wanting to use her phone," so his entry was "secured by fraud," thereby negating effective consent. The motion was overruled by the trial court and the case was submitted to the jury on a charge of the court to which appellant expressly voiced "no objections." ⁵

We agree that the trial court correctly overruled the motion for a directed verdict of not guilty in Cause No. 61,675. Applying the constitutional minimum standard required to enforce the due process right to freedom from conviction except on proof beyond a reasonable doubt, Griffin v. State, 614 S.W.2d 155, 158 (Tex.Cr.App.1981), after viewing the evidence in the light most favorable to the prosecution, we are satisfied that any rational trier of fact could have found the essential element of entry without the effective consent of Ms. Sheldon, beyond a reasonable doubt. ⁶ Appellant is right in his contention that "there must be an intent to commit theft at the time a person enters a habitation, Article 30.02(a)(1)," however the Sheldon burglary was alleged under § 30.02(a)(3): a person commits an offense if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit theft. The third ground of error is overruled.

In jury argument suffice to say the parties elaborated on the respective contentions made to the trial court on motion for directed verdict. The jury retired at 10:45 a. m., October 18, but thereafter sent out its first note to the court, to wit:

"May we take the testimonies of the 2nd case into consideration in determining a verdict of the 1st case?" ⁷

Over an objection of appellant that apparently had been discussed in chambers, ⁸ the trial judge responded:

"Ladies and Gentlemen: All evidence presented is before the jury and you are referred to that portion of the charge which recites that you are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to the testimony."

This action is challenged by appellant in his second "point of appeal," his contention being the trial court erred in allowing the jury "unlimited discretion in considering the weight of an extraneous offense" in that use of such an offense "is limited to certain well recognized exceptions." Supporting the trial court, the State doubts that the usual rules and procedure for dealing with an extraneous offense are applicable to this consolidated trial, but contends that if they are the testimony came in without limitation and with objection as "a direct and natural result" of failure of appellant to exercise his right to a severance under V.T.C.A. Penal Code, § 3.04. ⁹ We are not satisfied that either analysis resolves the problem.

The Practice Commentary following id., § 3.01 explains that "joinder is wholly permissive" and laments that Chapter 3 is "such a pale copy of the ... (1970 proposed code) ... that one wonders if all the energy expended to produce something permitting offense joinder couldn't have been put to better use on other topics in the code (emphasis in original)." ¹⁰ Indeed, in its first look by the Court § 3.02 was perceived as "giving the accused a mandatory right to consolidate pending indictments for trial before one jury panel (emphasis in original)," Johnson v. State, 509 S.W.2d 322, 323 (Tex.Cr.App.1974), but that dicta was disapproved by this Court in Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex.Cr.App.1980), in light of Smith v. State, 575 S.W.2d 41 (Tex.Cr.App.1979) and Caughorn v. State, supra. What became clear was that consolidation of separate indictments for trial may be accomplished by the State giving the thirty day notice required by § 3.02(b) and acquiescence thereto by the accused. ¹¹ Smith v. State, supra; Caughorn v. State, supra; Waythe v. State, 533 S.W.2d 802, 803 (Tex.Cr.App.1976): "We hold, therefore, that Sec. 3.04(a) is mandatory and that the trial court erred in failing to grant appellant's motion for severance." See also Overton v. State, 552 S.W.2d 849 (Tex.Cr.App.1977), finding reversible error in denying a motion to quash a single indictment containing two counts of aggravated robbery on grounds accused would be prejudiced by joinder, it being construed to be a request for severance.

The consolidation scheme that the Legislature did provide, though "wholly permissive," sought to achieve "convenience and efficiency, permitting one trial on the joined counts, and treating the separate offenses as one for sentencing purposes," Haliburton v. State, 578 S.W.2d 726, 729 ¹² (Tex.Cr.App.1979). Thus, the otherwise settled rule that when in the same indictment two or more felonies are alleged in different counts the accused may be convicted of only one count "does not now apply to offenses against property," Garcia v. State, 574 S.W.2d 133, 135 (Tex.Cr.App.1978) (Dally, J., dissenting), and the acquiescing accused is guaranteed that his ultimate sentences will run concurrently. Even so, the value of what benefits may be derived from the joinder procedure are to be assayed by the respective parties in their own lights.

It does not follow, however, that in agreeing the repitition of alleged felonious conduct may constitute a "criminal episode," an accused relinquishes ordinary and regular due process protections of a fair and impartial trial in a properly consolidated proceeding. So, we come to the question of procedural propriety of the written response implicitly made by the trial court to the question posed by the jury: that the jury could consider all evidence before it in deciding guilt-innocence in the Sheldon case.

The law of extraneous offenses is not particularly helpful, for it starts with the proposition that the test for determining admissibility of...