McCloud v. State
| Decision Date | 23 September 1975 |
| Docket Number | No. 50257,50257 |
| Citation | 527 S.W.2d 885 |
| Parties | Charles Everett McCLOUD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Michael R. Millican, Richardson, for appellant.
Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Stephen P. Tokoly and Charles Yett, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for burglary of a building, a second degree felony under Section 30.02 of our new Penal Code. After the jury found appellant guilty, the trial court sentenced him to life in accord with the provisions of Section 12.42(d), V.T.C.A., Penal Code.
The State first called three employees of Clockwise Fashions, a Dallas manufacturer of women's clothing. James Whiteman, production manager for Clockwise, testified that he had care, custody, and control of the Clockwise warehouse at 3003 Commerce Street and that he did not give the appellant consent to enter the warehouse or take any property from the premises. He stated that a particular line of tennis dresses and shorts were delivered to this building by a subcontractor on March 11, 1972. He also stated that since these dresses and shorts were not yet available on the retail market, all of them were located either at the Commerce Street warehouse or at the subcontractor's in Sherman.
Darlene Porter, a garment inspector for Clockwise at the Commerce Street warehouse, testified that on March 12, 1974, she was eating lunch at a table near the back door of the warehouse. With her was Emma Reager, a stock clerk with Clockwise. The back door, described as an overhead delivery door, was closed when the two women sat down to eat at 11:30. Presently, the women heard the door open and the sound of someone walking. They then around and saw a black man with an armful of the tennis dresses running toward the back door. They followed the man and watched him get into a dirty, light colored station wagon with two other men. One of the women memorized the license number of the car as it drove away. Neither woman was able to see the face of the man who took the dresses from the store, and neither identified the appellant at trial.
The woman reported the theft to Whiteman, who testified that after examining the merchandise he discovered that approximately twenty-five to thirty of the dresses were missing.
The appellant was stopped for a traffic violation the following day. He was driving a dirty, light colored station wagon and was accomplished by his brother Jessie Lee McCloud. The officer who stopped appellant observed a pair of white tennis shorts lying in the back floorboard in plain view. Aware of the details of the burglary at Clockwise, the officer examined the shorts and discovered that they matched the description (as to style number and brand name) of those taken in the burglary. He then arrested the two men.
Police officers then searched the apartment in which appellant had been staying with his brother and two other men. There they found several of the dresses taken in the burglary.
Appellant's first contention is that the court erred in failing to charge that Jessie Lee McCloud was an accomplice witness as a matter of law.
The State called McCloud as part of its case in chief. Like the appellant, Jessie McCloud was indicted for the Clockwise burglary. Prior to appellant's trial, Jessie pleaded guilty to this charge and was sentenced to three years, probated.
At the appellant's trial, Jessie's testimony was initially evasive, but when confronted by the evidence from his own trial, Jessie testified that appellant one Dorsey took the dresses while Jessie waited in the car.
The State then introduced a copy of the transaction of the court reporter's notes taken at Jessie McCloud's trial. That record reveals that Jessie took the stand and unequivocally stated that appellant and Dorsey stole the dresses while Jessie waited in the car.
Clearly, Jessie McCloud, as a co-indictee, was an accomplice as a matter of law. Hendricks v. State, 508 S.W.2d 633 (Tex.Cr.App.1974). It is not significant that Jessie had previously pleaded guilty and received probation--this does not provide an exception to the general rule. Otto v. State, 117 Tex.Cr.R. 257, 36 S.W.2d 177 (1931); and see Thomas v. State,120 Tex.Cr.R. 274, 48 S.W.2d 278 (1932).
In this case, the trial court utterly failed to give Any charge on accomplice testimony either as a matter of law or as a question of fact for the jury. See, e.g., Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975). Clearly, this was error.
Nor can we conclude that the error in the charge was harmless. Hendricks v. State, supra. Jessie McCloud's testimony was the only direct evidence connecting appellant with the offense. And, as in Hendricks, much of the co-indictee's testimony was not covered by the testimony of other witnesses. Finally, we cannot find...
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Harris v. State
...as a matter of law where the witness has been indicted for the same offense for which the accused is on trial. See also McCloud v. State, 527 S.W.2d 885 (Tex.Cr.App.1975).10 The court cannot take judicial notice by the testimony heard before him on another trial and enter judgment thereon. ......
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...must on the record actually request the desired charge in a timely manner and present it to the court for a ruling. [ McCloud v. State , 527 S.W.2d 885 (Tex.Crim.App. 1975).] Error is preserved as long as the desired instruction is substantially correct and places the trial court on notice ......
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Error Preservation and Appeal
...must on the record actually request the desired charge in a timely manner and present it to the court for a ruling. [ McCloud v. State , 527 S.W.2d 885 (Tex.Crim.App. 1975).] Error is preserved as long as the desired instruction is substantially correct and places the trial court on notice ......
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Error Preservation and Appeal
...must on the record actually request the desired charge in a timely manner and present it to the court for a ruling. [ McCloud v. State , 527 S.W.2d 885 (Tex.Crim.App. 1975).] Error is preserved as long as the desired instruction is substantially correct and places the trial court on notice ......