Harrington v. State, 40849

• Decision Date: 03 January 1968
• Docket Number: No. 40849,40849
• Parties: Eddie Harold HARRINGTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 237

424 S.W.2d 237

Eddie Harold HARRINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 40849.

Court of Criminal Appeals of Texas.

Jan. 3, 1968.

Rehearing Denied Feb. 21, 1968.

Bill Pemberton, Greenville, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Burglary with Intent to Commit Theft; the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., twelve (12) years confinement in the Texas Department of Corrections.

Appellant brings forth 13 grounds of error. We have taken the liberty of re-numbering them in order to present them in the chronological order in which they are alleged to have occurred.

In his first ground of error appellant claims that the trial court erred in overruling his motion to quash the jury panel in that the jury wheel in Hunt County was improperly filled in August, 1965, in violation of Articles 2094 and 2095, Vernon's Ann.Civ.St.

Hunt County is a 'jury wheel' county. Judicial notice will be taken by appellate courts that in the county from which the case has come the jury wheel method of obtaining jurors prevails. Garza v. State, 138 Tex.Cr.R. 403, 136 S.W.2d 861; Jones v. State, 85 Tex.Cr.R. 538, 214 S.W. 322; 35 Tex.Jur.2d, Jury, Sec. 45, p. 87.

Appellant introduced testimony from the County Tax Assessor-Collector and the District Clerk tending to show that the provisions of the above statutes (Articles 2094 and 2095, supra) had not been complied with in that the officials had used the poll tax list exclusively in filling the jury wheel with the names of qualified jurors. See Atwood v. State, 96 Tex.Cr.R. 249, 257 S.W. 563; Attorney General's Opinions O--5521, C--642. The State contends the evidence shows a substantial compliance with the aforesaid statutes and reflects that the name of no qualified juror was intentionally or deliberately omitted from the jury wheel. Vasquez v. State, 76 Tex.Cr.R. 37, 172 S.W. 225; Northern Texas Traction Co. v. Bryan, 116 Tex. 479, 294 S.W. 527. In view of the conclusion we have reached a recitation of the facts developed at the hearing on the motion to quash the jury panel is deemed unnecessary.

An exhaustive search of the record before this Court fails to reflect any evidence that the jury which tried the appellant three days after said hearing and which rendered the verdict upon which the judgment here appealed from was based was selected from a jury panel drawn from the jury wheel which he claims was improperly filled.

When confronted with a similar problem, this Court, in Williams v. State, 159 Tex.Cr.R. 76, 261 S.W.2d 175, said:

'A defect in the drawing of the jury panel would be material only when the jury which tried appellant was selected therefrom. Gaytan v. State, 116 Tex.Cr.R. 215, 32 S.W.2d 361; Evans v. State, 110 Tex.Cr.R. 560, 9 S.W.2d 360.

'We have no authority to presume that the jury which tried appellant was selected from the alleged irregular jury panel.'

See also Lenox v. State, 144 Tex.Cr.R. 226, 161 S.W.2d 1085, Stiles v. State, 147 Tex.Cr.R. 603, 183 S.W.2d 567; Wynn v. State, Tex.Cr.App., 259 S.W.2d 227; Priest v. State, 162 Tex.Cr.R. 260, 284 S.W.2d 148; 35 Tex.Jur.2d Jury, Sec. 96, p. 146.

Likewise, in absence of evidence, we cannot presume that the jury or a member thereof which tried appellant was selected from the jury panel for the week referred to in the testimony on the motion to quash the panel or was drawn from the jury wheel claimed to have been improperly filled the preceding August.

We find no merit in appellant's contention that Articles 36.01 and 37.07 Vernon's Ann.C.C.P.1965, repealed by implication the repetition of offenses statutes, Articles 62 and 63, V.A.P.C., and that the trial court erred in overruling his motion to quash the second and third paragraphs of the indictment alleging prior convictions for the purpose of enhancement of punishment.

Further, there is no merit in appellant's related claim that because the trial court informed the jury in his charge on the issue of guilt or innocence as to the punishment provided by law for the instant offense, as he was required to do by Article 37.07, Sec. 2(a) in effect at time of appellant's trial, ¹ that he was precluded from submitting the case to the jury under the provisions of Article 62, V.A.P.C. at the penalty stage of the proceedings. Appellant's second and third grounds of error are overruled.

In his fourth ground of error appellant contends the trial court erred in failing to charge the jury on the law of circumstantial evidence in view of his special requested charge. We cannot agree.

Responding to a call at approximately 2:30 a.m., police officers went to the Gibson Discount Store in the City of Greenville. Shortly thereafter the store's manager arrived and opened the door and permitted the officers' entry. A search of the store revealed the appellant hiding therein wearing a pair of gloves. The store's safe had been moved from its customary place and was partially 'peeled.' The tools found near the safe did not belong to the store. It was determined that entry had been made through holes made in the roof and ceiling. Another man was arrested on the roof of the building near the time of appellant's apprehension. The store manager, who had the care, custody and control of the premises, testified he did not give appellant permission to break and enter the store. The trial court was therefore not required to charge on the law of circumstantial evidence.

We reject appellant's contention that error was committed when a police officer witness at the hearing on guilt or innocence brought into the courtroom, in the presence of the jury, a Miller High Life beer box containing the tools which were later admitted into evidence as the tools found near the Gibson Store's safe at time of appellant's arrest. Upon the trial court's attention being directed to the beer box by appellant's objection, the objection was sustained, the box ordered removed from the courtroom and the jury instructed to disregard the box and not to consider it for any purpose. The motion for mistrial was overruled. Appellant's fifth ground of error is overruled.

Appellant complained in his written objections to the court's charge on the issue of guilt or innocence that paragraph No. 3 therefore ² constituted a comment on the weight of the evidence by the court, contained legal conclusions and was not a proper charge as required by law. The objection to the entire paragraph was too general, did not point out any specific error in the charge and was insufficient. See Davis v. State, 165 Tex.Cr.R. 294, 306 S.W.2d 353; Rymer v. State, 171 Tex.Cr.R. 656, 353 S.W.2d 35. Even if the objection had not been too general, it was without merit.

In his seventh ground of error appellant urges that the indictment was fundamentally defective for the reason that both prior convictions alleged for the purpose of enhancement under the provisions of Article 63, V.A.P.C. reveal that such convictions occurred on the same day (March 15, 1965) in the same District Court of Dallas County.

Prior to the penalty stage of the proceedings the court refused appellant's motion to compel the State to elect which prior conviction alleged it expected to rely upon for enhancement in view of the occurrence of the prior convictions on the same date. Subsequently that portion of the indictment alleging two prior convictions for burglary with intent to commit theft was read to the jury.

In Ex parte Atkinson, 162 Tex.Cr.R. 546, 288 S.W.2d 89, this Court said:

'It is apparent that since the relator was convicted in both of the Trinity County cases on the same day, neither conviction could have preceded the commission of the offense in the other case and the two convictions could not constitute the basis for a prosecution as a third offender under Article 63, V.A.P.C. Ex parte Daniels (158 Tex.Cr.R. 2) 252 S.W.2d 586.' See also Gammill v. State, 135 Tex.Cr.R. 52, 117 S.W.2d 790; 16 Tex.Jur.2d, Crim.Law, Sec. 406, p. 626.

In Gammill v. State, supra, this Court also said:

'It is observed that the two prior convictions in Cherokee County for forgery occurred on the same day. Hence only one of them could be relied on by the state to fix the status of an habitual criminal upon appellant and only one of such convictions had any place in the indictment. Ellis v. State, supra (134 Tex.Cr.R. 346, 115 S.W.2d 660); Nunn v. State (133 Tex.Cr.R. 266), 110 S.W.2d 71.'

We observe, however, that at the conclusion of the hearing on punishment the State, after offering evidence as to both prior convictions, did elect in the presence of the jury to dismiss paragraph three of the indictment, and the case was submitted to the jury under the provisions of Article 62, V.A.P.C.

Appellant's motion should have been granted and both paragraphs of the indictment alleging prior convictions occurring on the same date should not have been read to the jury. However, in view of subsequent events and the fact that the prior conviction alleged in said paragraph three was admissible as part of the appellant's 'prior criminal record' (Article 37.07, supra), we perceive no reversible error.

We cannot agree that this ground of error is controlled by the decision in Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (dated Nov. 13, 1967). Burgett was tried prior to the effective date of the 1965 Code of Criminal Procedure. See Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. Further, the prior conviction (contained in paragraph three of indictment) here admitted into evidence was not constitutionally infirm as was the one in Burgett (lack of counsel).

As an additional ground for reversal appellant contends he was compelled to give evidence against himself when the State was permitted to introduce his fingerprints taken during the trial, without an order of the court, and without the presence of counsel....