Joines v. State, 44997
| Decision Date | 21 June 1972 |
| Docket Number | No. 44997,44997 |
| Citation | 482 S.W.2d 205 |
| Parties | Glenn JOINES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Zimmerman & Rugeley by Rodger M. Zimmerman, San Marcos, for appellant.
Wiley Cheatham, Dist. Atty., Cuero, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for burglary. Trial was held before a jury, which assessed punishment at confinement for two years.
In his brief, appellant asserts ten grounds of error. In his first and fourth grounds of error, appellant contends that the court erred in overruling his motion for continuance which was filed on the day of trial, April 19, 1971. Appellant states that there were two other indictments pending against him and that on March 19, 1971, he received notice that all three cases were set for jury trial on April 19, 1971. The record reflects that a motion was filed by appellant on March 22, 1971, in which he moved that the State be required to elect the indictment upon which it would proceed. Appellant states that he was not notified until April 15, 1971, that the State would proceed to trial upon the case at bar, and that he therefore lacked sufficient time for preparation.
The record reflects that the indictment in the present case was returned on February 26, 1971, and that his counsel at trial was entered as attorney of record on that date. In light of the fact that appellant, with the assistance of counsel, had almost two months in which to prepare for trial, we find no abuse of discretion by the trial court in overruling his motion. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App.1972). Appellant's first and fourth grounds of error are overruled.
In his second and fifth grounds of error, appellant contends that the court erred in granting a severance as to his coindictee, Ricky Walpole. Appellant does not contend that the court erred in refusing to grant him a severance, but rather, that the court erred in granting his co-indictee's motion for severance. He maintains that Walpole's motion was inadequate under Act. 36.09, Vernon's Ann.C.C.P., and therefore, the granting of severance was an abuse of discretion.
We do not find that the trial court abused its discretion in granting the severance. Act. 36.09, V.A.C.C.P., provides:
'Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.'
The statute is composed of two parts. The first part grants the trial court the authority to grant a severance, in its discretion. The second part makes the granting of a severance mandatory under certain circumstances. Appellant would have us construe the mandatory provision of the statute as limiting the court's discretionary authority to grant a severance. Such a construction would render the first part of the statute a nullity. Cf. Satillan v. State, 470 S.W.2d 677 (Tex.Cr.App.1971). Appellant's second and fifth grounds of error are overruled.
In his third ground of error, appellant contends that the court erred in permitting Walpole, his co-indictee, to testify on behalf of the State. He contends that because he did not know that he and Walpole would not be tried jointly until the day of trial, he was unfairly surprised by Walpole's testimony. This contention is without merit. Even if he had been tried jointly with Walpole, Walpole would have been a competent witness for the State. Art. 36.09, V.A.C.C.P. The record further reflects that Walpole testified that he had informed appellant's counsel that he was going to testify for the State. Thus, there was evidence that appellant was not unfairly surprised. Appellant's third ground of error is overruled.
In his sixth ground of error, appellant contends that the court erred in overruling his motion for mistrial which was made in response to a comment by the prosecutor, at summation upon appellant's failure to call a certain witness.
The record reflects that appellant's mother testified that he had made a certain telephone call on the date of the offense to a girl (in support of a defense of alibi), and on cross-examination, named the girl. In argument, the prosecutor commented on the failure of appellant to call the girl as a witness.
It is well settled that the State may comment upon the accused's failure to call a certain witness to support his defensive evidence. E.g., Batiste v. State, 462 S.W.2d 30 (Tex.Cr.App.1971); Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970). In light of appellant's evidence that he had talked with a particular person, the State's comment upon the failure to call that person was proper. Appellant's sixth ground of error is overruled.
In his seventh ground of error, appellant contends that the court erred in overruling his motion for mistrial...
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...of the term. Nothing is presented for review. Cain v. State, supra; Webb v. State, 503 S.W.2d 799 (Tex.Cr.App.1974); Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972). Appellant contends that the prosecutor injected his personal opinion as to the credibility of the defense witness Shelly Mo......
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