McKibbon v. State, 04-85-00171-CR
| Decision Date | 25 June 1986 |
| Docket Number | No. 04-85-00171-CR,04-85-00171-CR |
| Parties | Leonard McKIBBON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Mark Stevens (court-appointed on appeal only), San Antonio, for appellant.
Sam Millsap, Jr., Eduardo Garcia, Michael Edwards, Edward Shaughnessy, III Before ESQUIVEL, CANTU and DIAL, JJ.
Crim. Dist. Attys., San Antonio, for appellee.
This is an appeal from a conviction for aggravated robbery. Defendant was convicted in a jury trial. The trial court assessed punishment at 99 years.
The evidence showed that two persons robbed a convenience store in San Antonio. The manager of the store identified the defendant as one of the two robbers. The co-defendant, James Woerner, had been convicted on a previous trial. The defendant's theory of the case was that the robbery was actually committed by Woerner and one Randy Woodall. The defendant offered alibi testimony. The defense also called Rosemary Maxwell as a witness and attempted to establish that Randy Woodall had admitted to Maxwell that he participated in committing the robbery. The court sustained the State's hearsay objection. The defendant now claims by ground of error that this testimony was an admissible declaration against penal interests.
What admission, if any, Woodall made to Maxwell is not shown in the record by bill of exception or otherwise. A bill of exception is a necessary predicate for appellate review if the matter complained of is not otherwise shown by the record. TEX.CODE CRIM.PROC.ANN. art. 40.09, § 6(b) (Vernon Supp.1986). Since the defendant did not perfect a bill of exception or offer other proof to show what the excluded testimony would have been, nothing is preserved for review. Passmore v. State, 617 S.W.2d 682, 685 (Tex.Crim.App.1981). The first ground of error is overruled.
The defendant's second ground of error concerns the failure of the trial court to grant a motion for a transcription of the record of the proceedings in the trial of the co-defendant James Woerner. The defendant relies on Billie v. State, 605 S.W.2d 558 (Tex.Crim.App.1980) which was based upon Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). The holding in Billie, modified on the State's motion for rehearing, was that an indigent defendant need only be furnished without cost for use in a subsequent trial a transcription of the testimony of the State's witnesses at the accused's prior trial. A transcription of other portions of the record need only be furnished if a particular need is shown. Billie, 605 S.W.2d at 565.
The defendant concedes that this case is distinguishable from the cited authorities. Here he is requesting that the proceedings in a third party's trial be transcribed while in the cases cited the appellants sought transcription of their own prior mistrials. The defendant contends this is a distinction without a difference, even though we do not know if the defendant was even mentioned in the testimony at the co-defendant's trial. We do not know if the...
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