Moore v. State

Decision Date06 February 1974
Docket NumberNo. 47645,47645
Citation504 S.W.2d 904
PartiesWillie Edward MOORE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

John F. Simmons, Dallas, for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty. and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

CORNELIUS, Commissioner.

Appellant and his co-defendant Darnell Robbins, though indicted separately, were tried jointly for rape. This appeal is by appellant Willie Edward Moore only. He was convicted, and his punishment was assessed by the jury at life. The sufficiency of the evidence is not challenged.

In the first ground of error appellant contends that the trial court erred in denying his first motion for a continuance which was filed on the day of trial. The motion alleged that appellant had not been able to locate three inportant fact witnesses known to him only as females named Pat, Stacy and Joyce, and that he needed additional time to locate these witnesses. The motion asserted that the witnesses were present in the vicinity of the apartment where the offense occurred and that appellant 'feels that, if found , the witnesses could and would testify to matters pertaining to the appearance, conduct and demeanor of defendant, co-defendant and complainant as they entered the location . . ..' No specification of the facts expected to be proved by these witnesses was made in the motion and it contains no assertion that the evidence could not be obtained from any other source.

The motion for continuance was properly overruled, as it did not specifically set out the facts expected to be proved by the absent witnesses. The allegations contained in the motion are mere conclusions and general averments. These have repeatedly been held to be insufficient. Moore v. State, 127 Tex.Cr.R. 637, 78 S.W.2d 189; Perkins v. State, 120 Tex.Cr.R. 399, 46 S.W.2d 672; Young v. State, 123 Tex.Cr.R. 105, 57 S.W.2d 171; Palasota v. State, Tex.Cr.App., 460 S.W.2d 137; Ikner v. State, Tex.Cr.App., 468 S.W.2d 809; Art. 29.06, Vernon's Ann.C.C.P.

Ground of error number one is overruled.

In grounds of error two and three, the appellant urges that the trial court erred in admitting into evidence the written confessions of appellant and the co-defendant. The basis of this complaint is that the warning given to the appellant and the co-defendant did not affirmatively advise them, as to their right not to speak, that they 'could remain silent,' but only that they 'did not have to made a statement.'

The record contains testimony that both the appellant and the co-defendant were taken before a magistrate and given the proper warnings before they were interrogated and that they were again read the 'Miranda' warning, from a written card, by the interrogator prior to their making the confessions. These warnings included the admonition that they had the right to remain silent. In addition, the written statements were read to the appellant and to the co-defendant before they were signed and they also contained such admonition. Prior to the admission of the statements the trial judge conducted a thorough hearing outside the presence of the jury concerning their voluntary nature and the warnings made to the parties, and made written findings and conclusions to the effect that the confessions were voluntarily made after proper warnings had been given and upon affirmative and intelligent waiver of the parties' constitutional rights. The record here amply supports such findings and...

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3 cases
  • McMahon v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 22, 1978
    ...appellant's failure to request a severance as one ground for holding the Bruton error harmless. Similarly, in Moore v. State, 504 S.W.2d 904, 905, n. 1 (Tex.Cr.App.1974), we considered the Bruton Question as unassigned error and again concluded that the failure to request a severance was on......
  • Cabello v. State, 13-82-008-CR
    • United States
    • Texas Court of Appeals
    • May 26, 1983
    ...in the identification phase" of the trial. This description of the witness' expected testimony was insufficient. See Moore v. State, 504 S.W.2d 904, 905 (Tex.Cr.App.1974); Palasota v. State, 460 S.W.2d 137 (Tex.Cr.App.1970). The third witness was allegedly sought to give testimony as to the......
  • Thomas v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 25, 1976
    ...(Tex.Cr.App.1970); Evans v. State, 500 S.W.2d 846 (Tex.Cr.App.1973); Hearne v. State, 500 S.W.2d 851 (Tex.Cr.App.1973); Moore v. State, 504 S.W.2d 904 (Tex.Cr.App.1974) (footnote #1); Ex parte Smith, 513 S.W.2d 839 (Tex.Cr.App.1974); Lewis v. State, 521 S.W.2d 609 (Tex.Cr.App.1975). Cf. Gri......

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