Guzman v. State, No. 48825

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtROBERTS; ODOM
Citation521 S.W.2d 267
Decision Date02 April 1975
Docket NumberNo. 48825
PartiesGilberto A. GUZMAN, Appellant, v. The STATE of Texas, Appellee.

Page 267

521 S.W.2d 267
Gilberto A. GUZMAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 48825.
Court of Criminal Appeals of Texas.
April 2, 1975.
Rehearing Denied April 23, 1975.

Sam A. Westergren, Jr., Corpus Christi (On appeal only), for appellant.

William B. Mobley, Jr., Dist. Atty., John M. Potter, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The conviction was for burglary of a private residence at night; the punishment, ten years' imprisonment.

In his third ground of error, appellant challenges the sufficiency of the evidence to sustain the conviction.

Mrs. Pauline Lynch testified she awoke early in the morning on February 7, 1971 and observed a man burglarizing her home. At this time, she sat up in bed and 'froze,' staring at the man for some time. From the street-light shining through the open bedroom windows and the light from the bathroom, she could clearly see the man's face. Having observed the man for several minutes, she was able to describe him to the police. The description was relayed to the dispatcher who broadcast it to other units in the area. The burglar was described as a man wearing a brown corduroy jacket and blue jeans, dark hair, and running toward Omaha Street. The arresting officers received the message, went to Omaha Street two blocks from the complaining witness' home, and observed a man fitting the description. After the officers stopped the appellant and radioed in that they had a subject fitting the dispatcher's description, the dispatcher gave the description of a knife that was taken from the Lynch residence. At this time, the officers conducted a search for a yellow pocket knife with an acid stain which was found in appellant's possession. Later at trial, Mrs. Lynch identified the appellant as the man in her home on the night of the burglary.

From the foregoing, it is apparent that there was ample evidence to support

Page 269

the verdict. When the sufficiency of the evidence is challenged, this Court must review the evidence in the light most favorable to the verdict. Resendez v. State, 495 S.W.2d 934 (Tex.Cr.App.1973). The evidence was sufficient to conclude that appellant was the guilty party.

Appellant's third ground of error is overruled.

Appellant next contends as a ground of error that the trial court erred in admitting into evidence the pocket knife seized as a result of the warrantless arrest at a time when the arresting officers lacked probable cause. It is his position that the officers did not have knowledge that a crime had been committed nor the description of appellant or the pocket knife when the search was conducted. The record is replete with evidence that the police proceeded to the vicinity in response to a description broadcast by the dispatcher. Upon observing the appellant matching the description, they stopped him and radioed back to the dispatcher who told them of the knife. At this time, the search was conducted which produced the item in controversy. Similar facts have been presented to this Court before in Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973); Browning v. State, 488 S.W.2d 801 (Tex.Cr.App.1972); Green v. State, 470 S.W.2d 901 (Tex.Cr.App.1971); Brown v. State, 443 S.W.2d 261 (Tex.Cr.App.1969). Therein, we have held that radioed police broadcasts, based on probable cause, reporting a felony and a description of the suspect were sufficient to satisfy the requirement of probable cause under Art. 14.04, Vernon's Ann.C.C.P. Under the circumstances described, the officers clearly were authorized to arrest the appellant. The search incident to that arrest was clearly authorized and the fruits thereof were admissible into evidence. We conclude that probable cause was shown for appellant's arrest and search.

In appellant's fourth ground of error, complaint is made of the State's questioning of prosecution witness Ray Lynch. The objectionable segment of examination is as follows:

'Q (Prosecutor) Mr. Lynch, I have about two or three little areas that I'd like to clear up with you and then we can let you go. Mr. Lynch, did you ever at any time give this Defendant, Mr. Gilbert Guzman, consent to be in your home?

'A (Mr. Lynch) No.

'Q (Prosecutor) Have you ever given him consent to take any of your property from your home?

'A (Mr. Lynch) No.

'Q (Prosecutor) Did you ever know him prior to this occurrence?

'A (Mr. Lynch) No.'

(At this point, defense counsel interposed objection on the grounds that the form of the questions assumed controverted facts and was overruled by the judge.)

Appellant maintains the controverted fact assumed is that of the identity of the appellant. The merits of thie argument need not be reached because of appellant's failure to timely object. All three questions were asked and answered before appellant objected. It is fundamental that a timely objection to inadmissible evidence be urged at the first opportunity. E.g., Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974); Cooper v. State, 500 S.W.2d 837 (Tex.Cr.App.1973); Sierra v. State, 482 S.W.2d 259 (Tex.Cr.App.1972); Evans v. State, 445 S.W.2d 180 (Tex.Cr.App.1969). This was not done; but even assuming timely objection had been made, such contentions are without merit. There is no controverted fact assumed in proffering these questions. These are elements of the offense which must be proven in order to sustain a conviction. To deny the State an opportunity to ask such questions would be to effectively deny it the ability to prove

Page 270

its case. Accordingly, we overrule the ground of error.

Lastly, appellant complains the trial court erred in failing to comply with the mandatory provisions of Art. 26.04(b), V.A.C.C.P. He maintains there was no waiver of the 10-day period allowed for trial preparation. The record reflects appellant was originally indicted for burglary on May 24, 1973. This indictment was dismissed on July 5, 1973 and a new indictment was presented the same day for burglary of a private residence at night. The allegations in both indictments are almost identical, the only difference being the inclusion of the additional elements that the burglary occurred at night and a 'private residence' rather than a 'house' was burglarized. Four days later on July 9, 1973, the case went to trial and appellant's appointed counsel filed a motion waiving the 10-day period to prepare for trial. This motion included a statement that he had been prepared to go to trial for several months. The defect complained of is that the appellant's signature was not actually included in this motion. This issue was not brought to the trial court's attention but raised for the first time on appeal.

The problem presented in this case is very similar to the one faced by this Court in Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974). 1 The difference in the two indictments is negligible and in no way affected appellant's defense presented at trial. In fact, it is curious that while appellant complains he should have been allowed the mandatory 10 days to further prepare for trial, his defense was based on Mrs. Lynch's impaired ability to accurately identify the appellant as the burglar in her home two and one-half years ago because of the long passage of time. Another facet of his defense was that one of the arresting officers is since deceased and unable to testify. We fail to see how either of these would be affected by allowing additional time for trial preparation.

It cannot be contended that there was insufficient time to prepare for trial. Appellant's attorney in his motion waiving the 10-day period states, 'Having been prepared for a trial involving this transaction for several months prior to this proceeding In appellant's motion to have appointed counsel discharged for being incompetent, he admits to having had five other attorneys represent him on this same case. From the record, present counsel had been appointed for two and one-half months. In addition, appellant had filed a motion for speedy trial less than two weeks before trial. This Court has emphasized the importance of adequate time to prepare for trial interpreting Art. 26.04(b), V.A.C.C.P. Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974); Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); and Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970). In Meeks v. State, supra, this Court said:

'The purpose of article 26.04(b), V.A.C.C.P. is clearly to guarantee to an indigent accused that he and his court appointed attorney will have a reasonable time in which they can prepare a defense. In the present case, it is clear from the record that appellant's counsel had three months in which to prepare for trial.'

We can only conclude as in Hayles v. State, supra, the facts do not support a reversal.

There is also an additional problem of the State filing materials designated for

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inclusion in the record. The material included the prior indictment and all motions and orders involving it. 2 Appellant maintains this material is not timely filed and therefore not properly before us for review. We disagree. Notice of appeal was given on August 28, 1973 and the record was approved some four months later by the judge on December 26, 1973. The material in question was filed some six months after the notice of appeal on February 25, 1974. 3 It was ordered included in the record two months later, April 24, 1974. The final order for the appeal to proceed was signed by the judge two weeks later on May 7, 1974. Appellant relies on Art. 40.09, Sec. 2, V.A.C.C.P., which provides:

'Each party may file with the clerk a written...

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68 practice notes
  • Dinkins v. State, No. 71409
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 1, 1995
    ...the delay, his objection is untimely and error is waived. See, Girndt v. State, 623 S.W.2d 930, 934 (Tex.Cr.App.1981); Guzman v. State, 521 S.W.2d 267, 269 (Tex.Cr.App.1975) (Error was waived because defendant failed to object until three objectionable questions were asked and answered.); S......
  • Bradley v. State, No. 56475
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 5, 1978
    ...as originally approved. The same procedure was followed by the State to supply a missing indictment in Guzman v. State, Tex.Cr.App., 521 S.W.2d 267, and a missing transfer order in Ellis v. State, Tex.Cr.App., 543 S.W.2d 135. Again, though, the matter so presented for a supplemental record ......
  • Armstrong v. State, No. 51763
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1976
    ...of the entire court, the majority approved the action taken in light of the original record forwarded to this court. In Guzman v. State, 521 S.W.2d 267, 272 (Tex.Cr.App.1975), this court approved the State placing material in the record almost three months after the approval of the record b......
  • Hardeman v. State, No. 52945
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 25, 1977
    ...Moreover, the owner of the truck had already testified that the truck had been stolen before an objection was made. See Guzman v. State, 521 S.W.2d 267 The appellant next complains that the court admitted evidence of an extraneous criminal offense unrelated in time and circumstances to the ......
  • Request a trial to view additional results
68 cases
  • Dinkins v. State, No. 71409
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 1, 1995
    ...the delay, his objection is untimely and error is waived. See, Girndt v. State, 623 S.W.2d 930, 934 (Tex.Cr.App.1981); Guzman v. State, 521 S.W.2d 267, 269 (Tex.Cr.App.1975) (Error was waived because defendant failed to object until three objectionable questions were asked and answered.); S......
  • Bradley v. State, No. 56475
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 5, 1978
    ...as originally approved. The same procedure was followed by the State to supply a missing indictment in Guzman v. State, Tex.Cr.App., 521 S.W.2d 267, and a missing transfer order in Ellis v. State, Tex.Cr.App., 543 S.W.2d 135. Again, though, the matter so presented for a supplemental record ......
  • Armstrong v. State, No. 51763
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1976
    ...of the entire court, the majority approved the action taken in light of the original record forwarded to this court. In Guzman v. State, 521 S.W.2d 267, 272 (Tex.Cr.App.1975), this court approved the State placing material in the record almost three months after the approval of the record b......
  • Hardeman v. State, No. 52945
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 25, 1977
    ...Moreover, the owner of the truck had already testified that the truck had been stolen before an objection was made. See Guzman v. State, 521 S.W.2d 267 The appellant next complains that the court admitted evidence of an extraneous criminal offense unrelated in time and circumstances to the ......
  • Request a trial to view additional results

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