Ratliff v. State, 45577
| Decision Date | 24 January 1973 |
| Docket Number | No. 45577,45577 |
| Citation | 490 S.W.2d 844 |
| Parties | Robert R. RATLIFF and Ruby May Ratliff, Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Glen Aaron, Jr., of Gray, Aaron & Dorsey, C. Adam Morriss, III, San Angelo, for appellants.
Frank C. Dickey, Jr., Dist. Atty., and Aaron Goldberg, Asst. Dist. Atty., San Angelo, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DALLY, Commissioner.
The convictions are for felony theft. The punishment for Ruby May Ratliff five years imprisonment with the sentence probated and for Robert R. Ratliff, seven years imprisonment.
The appellants' brief suggests no ground of error relating to the conviction of Ruby May Ratliff and the sole ground of error advanced by Robert R. Ratliff is that the trial court erred in overruling his amended motion for new trial '. . . based on the ground that the jury during their deliberations considered the defendant's failure to testify as a circumstance against him.'
The record before this court reflects that it was not timely filed as required by Art. 40.09, § 9, Vernon's Ann.C.C.P. but in the interests of justice the alleged ground of error will be considered and discussed under the provision of Article 40.09, § 13, V.A.C.C.P.
The appellant argues that the evidence at the hearing on the amended motion for new trial shows the jury considered as a circumstance against him his failure to testify in violation of Art. 38.08, V.A.C.C.P. and the Fifth and Fourteenth Amendments to the Constitution of the United States.
A recitation of some of the procedural facts is necessary to the discussion of this ground of error.
The appellants who were husband and wife were separately indicted. Counsel for Robert R. Ratliff filed a motion in limine alleging that he had been convicted for the felony offense of cattle theft and that the conviction was too remote to be admissible against him. A docket entry shows that the appellants agreed to be tried together.
During the guilt-innocence phase of the trial both appellants testified. During the hearing on the punishment phase of the trial Ruby May Ratliff testified before the jury in support of her motion that she be granted probation. Appellant did not testify at the hearing on punishment and apparently he did not seek a recommendation of probation from the jury being ineligible because of his prior conviction.
At the hearing on the amended motion for a new trial testimony of ten jurors who served was offered. When interrogated concerning whether the jury discussed the appellant's failure to testify the testimony was as follows: 'Not that I recall.' 'I don't remember.' 'As far as I remember, I would say 'no,' but I am not positive.' 'I couldn't say for sure.' 'No, not that I recall.' 'If they did I...
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Brantley v. State, 49532
...reversible error is shown. Ward v. State, Tex.Cr.App., 520 S.W.2d 395; Broussard v. State, Tex.Cr.App., 505 S.W.2d 282; Ratliff v. State, Tex.Cr.App., 490 S.W.2d 844; Howard v. State, Tex.Cr.App., 484 S.W.2d 903. In his eleventh ground, appellant complains of eleven different instances of a......
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Ward v. State
...remarks of the jurors were not of such a nature as to cause reversal. Broussard v. State, Tex.Cr.App., 505 S.W.2d 282; Ratliff v. State, Tex.Cr.App., 490 S.W.2d 844. The first ground of error is In his second ground, appellant complains because the court refused to grant his motion to disch......
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McMillon v. State
...of jurors, for disqualification of a juror, for refusal of a continuance or for newly discovered evidence." See also, Ratliff v. State, Tex.Cr.App., 490 S.W.2d 844. If an issue of fact was raised at the hearing on the motion for new trial, the trial judge was the trier of the facts, and it ......