Mitchell v. State, 43797
| Decision Date | 19 May 1971 |
| Docket Number | No. 43797,43797 |
| Citation | 466 S.W.2d 786 |
| Parties | Walter James MITCHELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Don Pevehouse, Corsicana (Court appointed), for appellant.
Jimmy Morris, Dist. Atty., Corsicana, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is robbery; the punishment, ten (10) years.
Appellant's first ground of error is that the trial court erred in admitting his confession into evidence because it was not freely and voluntarily made. It appears from the record that appellant did not make an objection when the confession was offered into evidence before the jury, and the record does not show that he objected outside the presence of the jury to the admission of the confession. However, the following notation appears in the trial court's written findings of fact and conclusions of law in regard to the voluntariness of the confession: 'During the course of this trial, the attorney for defendant objected to the admission of the written statement of the defendant, whereupon the trial court excused the jury * * *.'
Without deciding whether the above quotation shows a sufficient objection, we conclude that the trial court properly admitted the written confession. The testimony of several officers, plus that of Judge Richburg, who advised appellant of his constitutional rights, amply shows that appellant was not mistreated or coerced. It also shows that he was given warnings sufficient to advise him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that he waived these rights. Although appellant contradicted the officers in his testimony and also testified that he had been in jail for fourteen days on investigation for other matters, the judge and the jury rejected appellant's version and found the confession admissible. We find no error.
Appellant's second contention is that the trial court erred in overruling his first motion for continuance, filed the day before his trial, which was based on the absence of a defense witness. No motion for new trial appears in the record. A motion for new trial is a prerequisite t raising this ground of error on appeal. Urtado v. State, 167 Tex.Cr.R. 318, 319 S.W.2d 711; Massoletti v. State, 165 Tex.Cr.R. 120, 303 S.W.2d 412. However, even if we can properly consider this contention, and we accept the allegations in appellant's motion for continuance as being...
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