Griffin v. State, 45351
| Decision Date | 22 November 1972 |
| Docket Number | No. 45351,45351 |
| Parties | Frank Howard GRIFFIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Carver & Carver, by Charles Carver, Beaumont, for appellant.
Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is robbery; the punishment, sixteen (16) years.
Appellant and Leroy Jones, Jr., were tried together. Only appellant appeals. According to the State's case, four people were involved in the commission of the offense, Charles Dunn, John Darrington, Leroy Jones, Jr., and this appellant. At the time of trial, Dunn testified as the State's main witness. He had not been indicted. The record reflects Darrington had plead guilty. He did not appear as a witness. Jones' written confession, with all references to appellant deleted, was introduced in evidence. Jones and this appellant were represented by different counsel.
Appellant's first ground of error relates to the Leroy Jones' confession. As stated, under the direction of the trial judge, all mention of this appellant was deleted from Jones' confession. Appellant claims that the confession, even in its deleted form, still implicated him as a participant in the armed robbery. He cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; and Schepps v. State, Tex.Cr.App., 432 S.W.2d 926. However, Bruton, supra, and Schepps, supra, both involved the admission of a defendant's confession without the deletion of references to his co-defendant. Such is not the case here.
The State cites Posey v. United States, 416 F.2d 545 (5th Cir.). We quote therefrom:
'This court, as well as others, has held that there is no error in the admission of a co-defendant's confession, if all references to the other defendants are deleted and there is no 'substantial threat' to the right of confrontation and cross-examination.'
The State further relies on United States ex rel. Long v. Pate, 418 F.2d 1028 (7th Cr.). We quote therefrom:
We, therefore, conclude since deletion is an effective remedy, as is indicated by our opinion in Schepps, supra, and the 5th Circuit's case of Posey, supra, no error is presented in the case at bar.
Further, a motion for severance was available to this appellant, and though counsel had been aware of the appellant's case for some months, he made no such motion prior to trial. 1
Appellant's second ground of error complains of the admission of testimony taken at the examining trial, which implied that appellant had been arrested as the result of his co-defendant Jones' confession.
As shown above, the confession had been excised of any reference to Griffin. Russell Landry, the police officer to whom the confession was made and who was active in the preparation of the State's case for this trial, testified concerning the taking of Jones' confession. On cross-examination counsel for Jones sought to discredit Landry's testimony by the implication that a trade had been effected in order to secure Dunn's testimony. During redirect examination the State's attorney attempted to bolster Landry's testimony by reading from the testimony of the examining trial in which Landry, in response to questions by Jones' attorney, stated that Jones' confession had implicated this appellant as well as Dunn Darrington.
Immediately this appellant's counsel objected and just as promptly the Court instructed the jury to confession was submitted to the jury with all reference to Griffin excised. The references to Jones' confession which appellant complains of here do not refer to the admission of the confession and did not arise in relation to the admission of the confession. We hold the Court's prompt instruction, under the circumstances of the case, sufficient. Blassingame v. State, Tex.Cr.App., 477 S.W.2d 600; Craig v. State, Tex.Cr.App., 480 S.W.2d 680.
Ground of error number three is that the evidence is insufficient...
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