Nixon v. State, 55295

• Citation: 572 S.W.2d 699
• Decision Date: 18 October 1978
• Docket Number: No. 1,No. 55295,55295,1
• Parties: John Wayne NIXON, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 699

572 S.W.2d 699

John Wayne NIXON, Appellant, v. The STATE of Texas, Appellee.

No. 55295.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 18, 1978.

Rehearing Denied Nov. 15, 1978.

Donald W. Rogers, Jr., Houston, for appellant.

W. G. Woods, Jr., Dist. Atty. and Elliott Knott, Asst. Dist. Atty., Liberty, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

DOUGLAS, Judge.

John Wayne Nixon appeals his conviction for aggravated robbery. The jury assessed punishment, enhanced by one prior conviction, at life.

"Sonny" Huey, a deputy sheriff, testified that he was called to a gas station to investigate a situation involving appellant and Larry Dalton. Upon arrival, he determined that appellant possessed several weapons. As he called for assistance to further investigate, appellant aimed a gun at him and told him to get away from the radio. Nixon ordered Huey to get into a truck and give his vehicle a push. Before Huey could do this appellant told Larry Dalton to get into the truck and give him a push. Dalton did this and both vehicles fled down the highway. Rhonda and Harry Lee Ainsworth, the owner of the truck and his wife, both testified to this same series of events.

Both vehicles were abandoned only a few miles down the road. The stolen truck had a flat tire and was smoking under the hood.

Appellant challenges the sufficiency of the evidence. Specifically, appellant argues that the State failed to prove that he acted with an intent to deprive the owner of the truck.

The evidence shows that appellant told Larry Dalton to get into the stolen truck to give his vehicle a push. After doing this, both Dalton and appellant sped off. The truck was later abandoned in an inoperable condition.

Appellant contends that the facts show they used the truck only to effectuate their escape and did not intend to deprive the owner of the truck. We have rejected similar arguments in the past and upheld the jury's verdict. Stout v. State, 467 S.W.2d 409 (Tex.Cr.App.1971).

In reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the verdict. Fernandez v. State, 564 S.W.2d 771 (Tex.Cr.App.1978). The jury is the sole judge of the credibility of the witnesses and may believe those portions of the evidence that it deems proper. Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974).

It is a reasonable inference from the evidence in this case that appellant and Dalton intended to take the truck and abandoned it only when it became inoperable. The jury accepted this inference and resolved the issue against appellant. The evidence was sufficient.

Appellant contends the trial court erred in refusing to allow Larry Dalton to testify at the punishment phase of the trial. Dalton would have testified that he took the truck because he panicked and appellant did not direct or encourage him.

Appellant relies on Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973), and Brazile v. State, 497 S.W.2d 302 (Tex.Cr.App.1973). Both of these cases, involving offenses under our former penal code, were reversed because the trial court excluded defense evidence concerning lack of malice at the punishment phase. In both cases malice was not an element of the offense and was relevant only with respect to punishment. As Judge Morrison points out in his concurring opinion in Brazile, these cases do not hold that affirmative defenses or evidence exonerating the defendant is admissible at the punishment phase.

The disposition of this ground of error is governed by our holding in White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). In White, the defendant, at the punishment phase, sought to take the stand and testify to his version of the facts. We held that this evidence was properly excluded as not being relevant at the punishment phase of the trial.

Evidence of affirmative defenses which would exonerate the defendant is not admissible at the punishment phase of the trial. The court properly excluded such evidence in this case.

Appellant complains that he was denied jail time credit from July 28, 1975, to June 4, 1976. Appellant was credited with time from March 25, 1975, to July 28, 1975, while he was held in the Liberty County jail. He was then transferred to the Polk County jail, received a sentence there and was sent to the Texas Department of Corrections.

Appellant is entitled to all time spent in jail "on said cause." Article 42.03, V.A.C.C.P.; Harrelson v. State, 511 S.W.2d 957 (Tex.Cr.App.1974). However, when he is confined by another jurisdiction, he is confined "on said cause" only if a detainer or hold is lodged against him. Ex parte Alvarez, 519 S.W.2d 440 (Tex.Cr.App.1975); Ex parte Spates, 521 S.W.2d 265 (Tex.Cr.App.1975).

The record fails to reflect that a hold was placed by Liberty County with either Polk County or the Department of Corrections. Based on the record, appellant is entitled to no additional time. If in fact a hold was placed, appellant should be credited with all such time.

In his next ground of error, appellant, by way of a pro se brief and his counsel's supplemental brief, contends that he was tried on a...