Olson v. State

• Decision Date: 26 November 1969
• Docket Number: No. 42416,42416
• Citation: 484 S.W.2d 756
• Parties: Clifford OLSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 756

484 S.W.2d 756

Clifford OLSON, Appellant, v. The STATE of Texas, Appellee.

No. 42416.

Court of Criminal Appeals of Texas.

Nov. 26, 1969.

Rehearing Denied Sept. 25, 1972.

Darrell C. Morrow (Court-appointed), Travis C. Broesche (Court-appointed), Houston, for appellant.

Carol Vance, Dist. Atty., Phyllis Bell, Frank Price and Bill Burge, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for forgery. Two prior convictions for felonies less than capital were alleged for enhancement. The punishment was assessed at life under Article 63, Vernon's Ann.P.C.

The check as alleged in the indictment was drawn on the special account of Abegg & Reinhold Company in the amount of $121.74, payable to the order of Larry Seibert and was purportedly signed for the company by Howard Young.

The sufficiency of the evidence is challenged. Larry Seibert testified that he met Clifford Olson, the appellant, some two months before the date of the offense. Olson asked him if he wanted to make some easy money by passing some paper (forged checks). Later he saw Olson sign the name of Howard Young to the $121.74 check and four similar checks, and he, Seibert, passed the check at Weingarten's, and he also passed the other four checks he had received from Olson for a total sum of approximately $600.00. He turned all of the money over to Olson who then paid Seibert approximately $37.00.

Two employees of the Abegg & Reinhold Company testified that no person by the name of Howard Young was authorized to sign the company checks. It was shown that one hundred and sixty-five checks similar to the one admitted into evidence were stolen from the company. Linda Green testified that she worked at Weingarten's and cashed the check for Larry Seibert.

Handwriting samples given by appellant were introduced. R. O. Queen testified that he had had forty-one years experience in the field of handwriting analysis and comparison and that the person who signed the name Clifford Olson on the exemplar was the same person who signed the name Howard Young on the check.

The evidence is sufficient to support the conviction. The fourth ground of error is overruled.

In the first ground of error it is contended that error was committed when the trial court admitted into evidence the handwriting samples, because at the time they were taken Olson was under arrest and did not have counsel present.

The record shows that J. C. Parker who had been employed by the Houston Police Department in the forgery detail took the handwriting samples from Olson in 1963. ¹ The exemplars were admitted into evidence over the objection that Parker was not qualified as a handwriting expert. The jury was retired and Olson's retained trial counsel proved that appellant was under arrest when the handwriting samples were made, and that Officer Parker warned him that they would not be used against him on the check he had already written, but that they would or could be used on any future checks he might write; that Olson did not have counsel and was not advised that he could have counsel present at that time. State's counsel elicited from Officer Parker that Olson was not coerced or forced in any way and he voluntarily gave the handwriting sample.

The same question based on substantially the same objection was presented to this Court in the recent case of Burns v. State, Tex.Cr.App., 432 S.W.2d 93, and was answered adversely to appellant. Handwriting samples were taken from Burns by a deputy sheriff during a recess at his trial. When they were introduced an objection was made that he did not have his attorney present when the samples were taken.

This Court held in Burns v. State, supra, that the holding of the Supreme Court of the United States in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, 'made such handwriting 'exemplar' admissible.'

Considering the present case in the light of the objection made and the holdings in Gilbert and Burns, supra, there is no reversible error. The first ground of error is overruled.

In the second ground of error, it is contended that reversible error was committed when the exemplar or handwriting samples were introduced, because it alluded to an extraneous offense. From the discussion in Ground of Error No. 1, it can be seen that the proof before the jury was that Officer Parker was in the forgery detail of the Houston Police Department in 1963 and took the handwriting samples from Olson. The record further shows he knew that the signature on the card was that of Clifford Olson.

The above evidence did not show that appellant had committed an extraneous offense. ² The second ground of error is overruled.

In the third ground of error contention is made that reversible error was committed during the argument of the prosecutor.

There was no timely objection to any of the remarks of the prosecuting attorney.

We note that most of the argument was based on a reasonable deduction from the evidence or was a proper plea for law enforcement. Villarreal v. State, Tex.Cr.App., 440 S.W.2d 74; Perbetsky v. State, Tex.Cr.App., 429 S.W.2d 471, and Henderson v. State, 163 Tex.Cr.R. 573, 295 S.W.2d 215. While some of the argument probably should not have been made, there is nothing presented for review, because there was no timely objection pointing out that part of the argument appellant considered objectionable and nothing is presented for review. Wilson v. State, 163 Tex.Cr.R 202, 289 S.W.2d 597. When an objection to the argument is made for the first time in an amended motion for new trial, it cannot be considered. Blassingale v. State, Tex.Cr.App., 408 S.W.2d 115; Singleton v. State, 171 Tex.Cr.R. 196, 346 S.W.2d 328.

In 5 Tex.Jur.2d 75, Sec. 44, is found:

'An objection that argument of counsel transcended legitimate bounds should be addressed to the judge, to enable him to counteract any injustice, and to accord the offending counsel an opportunity to withdraw his objectionable remarks. It follows that, unless a timely objection is made below, the appellant will not ordinarily be permitted to complain on appeal of such conduct. * * *'

Generally, to constitute reversible error because of argument of the prosecution there must be a violation of some mandatory statute or some new fact has been injected into the case or the argument must have been manifestly improper and harmful. McMahon v. State, 147 Tex.Cr.R. 508, 182 S.W.2d 712. See Durst v. State, 159 Tex.Cr.R. 466, 265 S.W.2d 118, and Allison v. State, Tex.Cr.App., 248 S.W.2d 147.

Complaint is made in the fifth ground of error that the trial court erred at the penalty stage of the trial in permitting the State to introduce four misdemeanor convictions from courts of record and five prior felony convictions in addition to those alleged for enhancement. Article 37.07, Vernon's Ann.C.C.P., specifically provides for the introduction of the prior convictions. Pendleton v. State, Tex.Cr.App., 434 S.W.2d 694. The fifth ground of error is overruled.

There being no reversible error, the judgment is affirmed.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Presiding Judge.

On rehearing, appellant vigorously asserts this court failed to answer his first ground of error on original submission. ¹ He contends that by briefs and oral arguments he has sought to make clear his proposition that the introduction at his 1968 trial of his handwriting exemplars taken in 1963 was in violation of the self-incrimination privilege of the Texas Constitution, Article I, § 10, not that it was violative of the Fifth Amendment, United States Constitution. He recognizes the holding in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), ² which was applied by this court in Burns v. State, 432 S.W.2d 93 (Tex.Cr.App.1968), both decisions being cited in the opinion on original submission, but argues these cases dealt only with the scope of the Fifth Amendment not the state constitutional provision. He urges that the Texas constitutional provision is broader and more sweeping in scope than that of the analogous provision in the Fifth Amendment.

Appellant advances the argument that in an 'imposing series' of opinions, this court, in interpretation of the Texas constitutional provision, has established the principle that any evidence (not merely self-incriminating statements, oral and written) elicited from an accused requiring volitional participation of the accused which may be deemed self-incriminatory is subject to exclusion. Appellant contends handwriting exemplars require a 'volitional act' on the part of the accused, analogous to '. . . any other forced demonstrative action, or to a coerced oral statement or written confession . . .,' which are distinguishable from evidence, such as footprints, which can be obtained from the 'mere action of others.' He concludes the exemplars are 'evidence' elicited from an accused which require a 'volitional act' and are within the ambit of the state constitutional self-incrimination provision as established by the decisional authority of this court. He cites and relies upon Allison v. State, 423 S.W.2d 326 (Tex.Cr.App.1968) (driver's license); Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (Tex.Cr.App.1956) (blood sample); Marshall v. State, 159 Tex.Cr.R. 268, 262 S.W.2d 491 (Tex.Cr.App.1953) (blood sample); Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706 (Tex.Cr.App.1942) (speaking certain words for identification under compulsion); Apodaca v. State, 140 Tex.Cr.R. 593, 146 S.W.2d 381 (Tex.Cr.App.1941) (urine sample, demonstrative acts); Meredith v. State, 73 Tex.Cr.R. 147, 164 S.W. 1019 (Tex.Cr.App.1914) (written instrument). ³

Although none of these cases dealt with handwriting exemplars as such, appellant strongly contends the opinion on original submission

'. . . overruled Sub silentio a substantial...