Lopez v. State, 43483

• Decision Date: 03 March 1971
• Docket Number: No. 43483,43483
• Citation: 464 S.W.2d 882
• Parties: Raymond Garcia LOPEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 882

464 S.W.2d 882

Raymond Garcia LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 43483.

Court of Criminal Appeals of Texas.

March 3, 1971.

Rehearing Denied April 14, 1971.

Wiley, Plumb & Plunkett by Lewin Plunkett, San Antonio, for appellant.

Ted Butler, Dist. Atty., Charles Conaway, Wayland Simmons and Sparta Bitsis, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary with the punishment, enhanced jnder the provisions of Article 62, Vernon's Ann.P.C. being assessed at 12 years.

At the outset the appellant contends there is a fatal variance between the allegata and the probata in that the indictment alleged the ownership of the 'house' in question to be that of Roland Mueller when the evidence showed C. F. Powell to be manager of the corporation occupying the building or 'house' in question at the time of the alleged offense.

The witness Mueller testified he was the President of the M and M T.V. Service, Inc., which leased the building burglarized, and that on the date of the burglary he had the care, custody and control of such building. Powell related he was the Secretary-Treasurer of the corporation and manager thereof and that he had locked and secured the building on the date of the burglary. Subsequently, Mueller was re-called and admitted he and Powell owned stock in the corporation and both had care, custody and control of the building involved. It is this last testimony upon which appellant bases his claim.

In 4 Branch's Ann.P.C., 2d ed., Sec. 2514, p. 834, it is written:

'In the law of burglary and theft the person in actual care, control and management of the property at the time of the alleged burglary or alleged theft is the owner thereof, and ownership may be alleged in the person in such actual care, control and management, and it is not necesary to allege whether the title is in a corporation, partnership, or firm.

'Where property is owned in common or jointly by two or more persons, either as general or special owners, ownership may be alleged to be in all or either of them.'

We find no merit in appellant's contention. Lamb v. State, 170 Tex.Cr.R. 23, 338 S.W.2d 738; Morgan v. State, Tex.Cr.App., 399 S.W.2d 363.

Next, complain is made that during jury argument at the guilt stage of the trial the assistant district attorney made reference to sending the appellant 'back to the penitentiary.' No request was made for the court reporter to record the jury arguments and the same is not in the record before us. No formal bill of exception was utilized. See Article 40.09, Sec. 6, Vernon's Ann.C.C.P. After the jury had retired to deliberate at the initial stage of the trial appellant's counsel dictated into the record his version of what had occurred during argument; the prosecutor responded with his version and the court 'qualified' the remarks. It appears that after the prosecutor in argument stated in substance it would give him no pleasure to send the appellant 'back to the penitentairy' an objection was made. The objection was sustained, and the court on its own motion instructed the jury to disregard the argument and not to consider the same for any purpose in their deliberations. The motion for mistrial was denied. Even if it can be considered that the matter is properly before us, we perceive no reversible error under the circumstances. Further, while Article 36.01, V.A.C.C.P., prohibits the reading of that portion of the indictment alleging a prior conviction for enhancement only to the jury until the penalty stage of the trial, we note that prior to trial the appellant requested the jury to assess punishment. See Article 37.07, V.A.C.C.P., 1967. The voir dire examination of the jury panel is not in the record before us. We thus have no way of determining whether during such voir dire examination of the jury panel they were advised of the enhancement portion of the indictment and the effect of the provisions of Article 62, V.A.P.C. There is one and only one voir dire examination of the jury panel in our bifurcated trial system. If the jury has been selected prior to trial to assess punishment, as in the case at bar, the only time prospective jurors may be informed and questioned about the laws applicable to the penalty stage of the trial is at this time. Still further, since there is no record of the jury argument before us we have no way of knowing whether such argument had previously been without objection or was invited by argument of appellant's counsel.

In three grounds of error appellant urges the trial court erred at the penalty stage of the trial in refusing to permit his counsel to inform the jury as to the 'automatic' effect of Article 62, V.A.P.C., in refusing his special requested charge and in refusing to permit the jury to actually assess the punishment. He relies upon his construction of the 1967 version of Article 37.07, V.A.C.C.P.

Prior to the 1965 Code of Criminal Procedure where the punishment was fixed by law, neither the judge nor the jury could exercise any discretion. The statutes involved were mandatory and there was no necessity for the jury to assess punishment. See Salinas v. State, Tex.Cr.App., 365 S.W.2d 362; Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864.

In 1965 when Article 37.07, supra, was first enacted it provided that at the guilt stage of the bifurcated trial the instructions must include the punishment provided by law for each offense submitted. ¹ In Section 2(b) thereof it also provided in part:

'In the event the defendant elects to have the jury fix the punishment in cases where the punishment is fixed by law, the court shall instruct the jury that if they find the defendant is the same person who was convicted in the prior conviction or convictions alleged for enhancement, they should set his punishment as prescribed by law.'

Under such statute the jury upon certain findings was required to write into its verdict the punishment fixed by law over which punishment they exercise no discretion.

Expressly eliminating such provision, the 1967 amendment to Article 37.07, V.A.C.C.P., now reads:

'1. The verdict in every criminal action must be general. When there are special pleas on which a jury is to find they must say in their verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, they must find that the defendant is either guilty or not guilty, and, except as provided in Section 2, they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.

'2. Alternate procedure

(a) In all criminal cases, other than misdemeanor cases of which the justice court or corporation court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed.

(b) If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in capital cases where the state has made it known in writing prior to trial that it will seek the death penalty, (2) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (3) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the...