Phillips v. State, 48515

• Citation: 511 S.W.2d 22
• Decision Date: 26 June 1974
• Docket Number: No. 48515,48515
• Parties: Arthur Lee PHILLIPS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 22

511 S.W.2d 22

Arthur Lee PHILLIPS, Appellant, v. The STATE of Texas, Appellee.

No. 48515.

Court of Criminal Appeals of Texas.

June 26, 1974.

Rehearing Denied July 17, 1974.

George M. Kelton, Odessa, for appellant.

John Green, Dist. Atty., Dennis Cadra, Asst. Dist. Atty., Odessa, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

quentin keith, commissioner.

Appellant was indicted for robbery by assault and convicted by a jury which set his punishment at 99 years' imprisonment.

Early in the morning of March 7, 1973, a man entered the grocery store of Eldon H. Maney in the City of Odessa. He had a snub-nosed pistol in his hand which he aimed at Mr. Maney. Although Maney testified that no words were spoken at the time he 'knew' that it was a robbery and the man with the pistol wanted his money. He went to the cash register, took out the contents of the machine (about $350) and handed it to the robber. Maney was then shot by the robber, two bullets penetrating his skull. The robber, again without speaking, then turned and shot Susie Molinar, a clerk in the store, and went out the front door of the store with the money. Appellant was apprehended a short distance from the store soon after the robbery. At that time he had no weapon in his possession and only $140 in currency which was secreted in his underwear.

Upon the trial both Maney and Mrs. Molinar were positive in their identification of appellant as the robber who shot them while he was taking the money from the store. Appellant testified to a bizarre story which the jury did not accept, this being an abbreviated version of his testimony: He said that he drove to the store in an automobile driven by one Charley Garrett with Mrs. Doris Cephus as a passenger in the back seat. The car stopped in the alley behind the store. The purpose of going to the store, according to appellant, was for Doris 'to meet a dude' known to appellant only as 'Skipper.' Appellant said that he got out, went into the store to purchase a package of cigarettes and heard shots therein about the time he opened the door; that 'Skipper' was inside the store with money in one hand and a pistol in the other; that 'Skipper' pointed the gun at him but that he succeeded in taking it away from him. 'Skipper', according to appellant, then ran out of the back of the store and has not been seen nor heard of since. We continue appellant's version: He ran back to the car and found that Garrett had departed but Doris Cephus was in the driver's seat ready to go; they drove a few blocks and appellant got out of the car after giving Doris a .38 caliber pistol which he had in his pocket. He also disposed of the .22 caliber pistol which he claimed to have jerked away from 'Skipper' before his arrest some thirteen minutes after the robbery.

Appellant's description of 'Skipper' was very general but, on cross-examination, he admitted that a more detailed description fitted his own appearance rather closely. He explained that the money found in his drawers was from wages earned plus his gambling winnings of the previous night; and, further, when gambling, he kept his money in his underwear.

The Court's charge, which comes to us without objection, submitted robbery by assault, and the jury took but a short while to return their verdict of guilty as charged.

Now, this Court, having 'the largest case load of any other state appellant court in the United States', ¹ is confronted with an appellate brief urging sixty-eight grounds of error. This is an incredibly large number considering the relative simplicity of the fact structure of the case and the shortness of the trial.

This Court has never failed to give full attention to any ground of error, presented in accordance with the statutory and decisional rules governing appellate briefs, urged by one convicted of crime in Texas; nor will the increasing case load of the Court lessen our efforts to review carefully each appeal so that the lawful rights of all appellants may be protected. However, it is well to point out to appellant's counsel in this case, and to the bar in general, that the right of appellate review extends Only to complaints presented in accordance with Art. 40.09, Sec. 9, Vernon's Ann.C.C.P., as authoritatively construed by this Court. Even as to such grounds so presented, the quality of presentation rather than the quantity is more effective.

Each of the members of this Court has had occasion in recent years to follow the general rule of long standing: A ground of error making no definite reference to the record, and which is unsuppoted by argument and authorities, is not entitled to consideration under Art. 40.09, Sec. 9, V.A.C.C.P. Such a ground of error, under the universal holdings of this Court, presents nothing for review. A few of the authorities so holding are cited in the footnote following the names of the authors. ² There has been no departure from this rule by any of the Commissioners and we forego a detailed analysis of their opinions following the well-trodden path of the members of the Court. ³

Although we are not impressed with the form or content of appellant's brief, we will consider those grounds of error upon which principal reliance is placed. At the outset, from our review of the evidence as stated above, we overrule grounds of error number one contending that the evidence is insufficient to sustain the conviction and number twenty-six claiming error in overruling appellant's motion for an instructed verdict at the close of the evidence. The evidence was sufficient to sustain the conviction.

In ground of error number two, appellant complains of the action of the trial court in overruling his motion for a change of venue. Our record discloses that there had been a substantial amount of publicity in the news media concerning the details of the alleged crime contemporaneous with the occurrence and arrest of appellant. He filed his motion for a change of venue which was controverted by the State and a lengthy hearing was held. Appellant advances no facts or argument in support of the alleged error other than the pretrial publicity. We are not even advised that appellant exhausted his peremptory challenges. ⁴ We find no error in overruling the motion to change of venue. The question was considered exhaustively in Creel v. State, 493 S.W.2d 814, 820 (Tex.Cr.App.1973), which governs our disposition of this ground of error.

Appellant's 52nd ground of error, presented without any statement of facts, argument, or supporting authority, is a conclusory allegation that he is entitled to a new trial because he was arraigned after the jury had been selected and impanelled. Nothing is presented for our review because of a lack of compliance with the requirements of Art. 40.09, Sec. 9, V.A.C.C.P. Frazier v. State, fn. 2 supra; Hall v. State, 492 S.W.2d 512, 514 (Tex.Cr.App.1973); Mason v. State, 495 S.W.2d 248, 250 (Tex.Cr.App.1973).

Moreover, the ground of error is an incorrect statement of the law. The indictment was returned on March 27, 1973, while the trial began, with appellant being represented by retained counsel, on June 26, 1973. The arraignment was timely even if after the jury was selected and impanelled. Art. 26.03, V.A.C.C.P. Cf. Barnes v. Beto, 247 F.Supp. 435 ((S.D.Tex., 1964); affirmed, 353 F.2d 208 (5th Cir. 1965); cert. denied, 383 U.S. 920, 15 L.Ed.2d 675, 86 S.Ct. 918 (1966)).

Appellant has ten grounds of error complaining of statement made by the district attorney during the voir dire examination of the jury. Even though the grounds are insufficiently presented to require detailed analysis, an examination reveals no error.

The first series of grounds complains of the prosecutor describing the serious wounds received by Maney and Molinar when they were shot by appellant during the course of the robbery. The State could prove upon the trial that the two victims had been shot during the robbery and the nature and extent of their injuries. Fields v. State, 160 Tex.Cr. 498, 272 S.W.2d 120, 122 (1954); Levell v. State, 453 S.W.2d 831, 832 (Tex.Cr.App.1970); Jackson v. State, 486 S.W.2d 764, 767 (Tex.Cr.App.1972); Dickson v. State, 492 S.W.2d 267, 272 (Tex.Cr.App.1973).

Our review of the action of the trial court in controlling the interrogation of prospective jurors on voir dire examination is only to ascertain whether the court abused its discretion. Jett v. State, 489 S.W.2d 101, 102 (Tex.Cr.App.1972). Since the prosecutor could, and did, offer evidence upon the trial of the injuries sustained by the victims, it was not an abuse of discretion on the part of the trial court to permit the jurors to be interrogated on the subject. Cf. Reeves v. State, 491 S.W.2d 157, 161 (Tex.Cr.App.1973). Grounds four, five, and six reflect no error.

Six of the grounds of error (Nos. 54, 55, 56, 58, 59, and 60) relate to statements made by the prosecutor to the entire panel on voir dire without any objection having been made by appellant. No error is revealed. An objection to conduct of the prosecutor made for the first time in an amended motion for new trial cannot be considered. Olson v. State, 484 S.W.2d 756, 759 (Tex.Cr.App.1969). In the absence of a timely objection, with an opportunity for the trial court to take protective action, nothing is presented for review. Cf. Hendrix v. State, 474 S.W.2d 230, 233 (Tex.Cr.App.1971); Jackson v. State, 501 S.W.2d 660, 662 (Tex.Cr.App.1973).

In one other instance (Ground No. 57), appellant's objection was sustained, the jury instructed to disregard the prosecutor's statement, and appellant sought no other relief. No error is shown. Dixon v. State, 506 S.W.2d 585, 588 (Tex.Cr.App.1974).

All grounds of error addressed to alleged prosecutorial misconduct in the voir dire examination have been examined and found to be without merit. Each is overruled.

We come now to a consideration of the fifteen grounds of error relating to evidentiary rulings made by...