Longoria v. State, 48178
| Decision Date | 10 April 1974 |
| Docket Number | No. 48178,48178 |
| Parties | Joe Marion LONGORIA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ruben Bonilla, Jr., Corpus Christi, for appellant.
John Flinn, Dist. Atty., Sinton, and Jim D. Vollers, State's Atty., Austin, for the State.
McCLOUD, Commissioner.
This is an appeal from a conviction for burglary wherein punishment was enhanced under Article 63, Vernon's Ann.P.C., at life.
The sufficiency of the evidence is not challenged.
Appellant contends in his first ground of error the trial court erred in overruling his motion for continuance which was filed on June 7, 1973, the day of trial. Appellant alleged in his motion that on June 6, 1973, the day before trial, his mother employed an attorney of his choice to assist appellant's court-appointed attorney in the defense of his case. The motion further stated that appellant's retained attorney had not had sufficient time to prepare for trial. The record reflects that at appellant's request he had been represented by appointed counsel since May 9, 1973. In overruling appellant's motion, the trial court found that the appointed attorney was an experienced and competent criminal defense lawyer who was prepared for trial on June 7, 1973. The record reflects that after the motion for continuance was overruled, the retained attorney took the lead in the case, but the appointed attorney was present and participated in the trial.
In Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374, this court stated:
The defendant in Clark v. State, Tex.Cr.App., 366 S.W.2d 784, was represented by appointed counsel and prior to trial the defendant filed a motion for continuance, alleging that he had on the day of trial employed an attorney of his choice and his retained attorney had not had sufficient time to prepare for trial. The trial court overruled the motion and this court held no error was shown because the record reflected that both the appointed and retained counsel actively participated in the trial.
We find no abuse of discretion in the instant case. The record reflects that the appointed attorney was prepared for and did participate in the trial. Appellant's first ground of error is overruled.
Appellant next complains of the admission into evidence of his statement which he argues was involuntarily given and made while he was in fear of his personal safety.
The record reflects that a Jackson v. Denno 1 hearing was conducted. After the hearing the trial court found that appellant's statement was freely and voluntarily given and that appellant had been advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Article 38.22, Vernon's Ann.C.C.P. The court also found that appellant knowingly and voluntarily waived his rights.
At the hearing on the admissibility of the statement appellant testified that at the time of his arrest he was choked by Officer Maley and he signed the statement to prevent further choking or bodily harm. Officer Maley denied that he choked or in any way abused appellant.
The trial court, as trier of the facts, was free to disbelieve appellant's testimony and to believe the testimony of the other witnesses. Chivers v. State, Tex.Cr.App., 481 S.W.2d 125. The findings made by the trial court are supported by the evidence. Appellant's second ground of error is overruled.
In his third ground of error appellant contends the trial court erred in overruling his motion for mistrial after a witness referred to an extraneous offense allegedly committed by appellant.
Appellant was charged with the burglary of Leo's Sandwich Shop and during the examination of Officer Turnbough, who took the statement from appellant, the following occurred:
'THE COURT: Did you tell him what he was in jail for, did you tell him what the investigation was?
'THE COURT: What was it?
'THE COURT: Leo's?
In the recent case of Bolden v. State, Tex.Cr.App., 504 S.W.2d 418, a witness testified that he had purchased some copper wire from the defendant which the evidence showed had been taken during a burglary. A detective testified that after he talked to the witness he knew exactly whom he...
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Schultz v. State
...that Article 37.07, Section 1, V.A.C.C.P., requires that the jury must assess punishment if the defendant has so requested. In Longoria v. State, 507 S.W.2d 753, this Court 'Section 1 of Article 37.07, V.A.C.C.P., provides that, except as provided in Section 2, the jury shall assess the pun......
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Berlanga v. State, 04-84-00311-CR
...witness's testimony presented at the pre-trial hearing. Evans v. State, 622 S.W.2d 866, 870 (Tex.Crim.App.1981); Longoria v. State, 507 S.W.2d 753, 755 (Tex.Crim.App.1974). At the motion to suppress hearing, the State offered the testimony of two officers from the San Antonio Police Departm......
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Carey v. State, 51413
... ... Court held the following question to be improper but curable, 'Do you know Robert has been in trouble with the law before?' Likewise, in Longoria v. State, Tex.Cr.App., 507 S.W.2d 753, this Court held that the reference to an extraneous offense by a witness in response to a question was curable ... ...
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