Ridyolph v. State

• Decision Date: 05 January 1977
• Docket Number: No. 53109,53109
• Citation: 545 S.W.2d 784
• Parties: Richard RIDYOLPH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 784

545 S.W.2d 784

Richard RIDYOLPH, Appellant, v. The STATE of Texas, Appellee.

No. 53109.

Court of Criminal Appeals of Texas.

Jan. 5, 1977.

Rehearing Denied Feb. 2, 1977.

J. Douglas Tinker, Corpus Christi, Marvin O. Teague, Houston, for appellant.

Carol S. Vance, Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, William B. Mobley, Dist. Atty., and Vic Gillespie, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder with malice under the former Penal Code where the jury assessed punishment at ninety-nine (99) years. The case was tried in Harris County following a change of venue from Nueces County. A previous conviction was reversed in Ridyolph v. State, 503 S.W.2d 276 (Tex.Cr.App.1973), for the suppression of evidence.

Appellant attacks the admissibility of his confession, complains of the admission of certain evidence, urges error as to the failure to charge on the law of circumstantial evidence, as well as the failure to give other charges and claims that certain jury argument of the prosecutor constitutes reversible error.

The record reflects that two or three minutes after 11 p.m. on August 19, 1971, the deceased, Corpus Christi Police Officer John Sartain, along with officers Lazo and Balli, walked out of the back door of the police station into a well lighted parking lot. Four or five seconds later a shot was fired, Sartain slumped over and Lazo pulled him to the ground. Balli scrambled for cover. Lazo observed that Sartain was bleeding profusely about the head. An ambulance was called and Sartain was taken to the hospital.

Dr. Craig Norstrom examined Sartain at the hospital. Sartain was unconscious and bleeding profusely from the head. There were lead pieces in the brain. Sartain died eight hours after admission to the hospital. The cause of death was shown to be a gunshot would to the head.

The State introduced the written extrajudicial confession of the appellant in which he admitted he was given a rifle and some bullets in June of 1971 and that on August 19, 1971, he had taken the rifle with him and he went to a recreation center and sat on a bench with some older boys drinking wine. He related these boys saw his rifle and that they said 'they ought to go and shoot at the law.' When the wine was gone, the appellant told them he was 'fixing to make it' and as he left the boys on the bench said 'shoot at the police station' and about 11 p.m. he fired one shot at the police station from the baseball field. Appellant fled. The next day he gave the rifle in question to one James to keep for him.

Alex Roberson testified he was with the appellant and his brother on August 19, 1971, about 11 p.m., that appellant was in some bushes behind the ball park fence and had something long in his hand. Roberson heard a shot fired and they all ran to appellant's home where he took the object into the house. Three minutes later they went to the recreation center and when people at the center were talking about a policeman who was shot at the police station appellant stated, 'I got one' and 'I got a policeman.'

Leonard James testified that on the weekend of August 20, 1971, the appellant gave him what he assumed was a rifle, wrapped up, to keep for him and it was placed in his car trunk. The next morning the rifle was recovered from him.

Appellant advances four grounds of error relating to the admissibility of his confession. He contends the trial court erred in denying the motion to suppress the confession and later in admitting the confession into evidence over objection as the same failed to satisfy provisions of Articles 15.17 and 38.22, Vernon's Ann.C.C.P., as to the warnings required thereby. He further contends that the court's findings of fact on the voluntary nature of the confession are incomplete and should be rejected and admissibility should be resolved on the basis of the statement of facts.

A review of arguments advanced under these grounds of error and the one case cited indicates that appellant limits his argument to one contention--that he was under 17 years of age and without counsel at the time of the confession and that Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975), would render the confession inadmissible.

In Lovell a confession taken from a 16 year old individual on February 10, 1974, without the presence or waiver of counsel was held inadmissible in light of V.T.C.A., Family Code, § 51.09 (Waiver of Rights), which became effective September 1, 1973. ¹ Said Section provided:

'Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:

'(1) the waiver is made by the child and the attorney for the child;

'(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;

'(3) the waiver is voluntary; and

'(4) the waiver is made in writing or in court proceedings that are recorded.'

The confession in the present case was taken on August 21, 1971, long prior to the effective date of the foregoing quoted section. Apparently appellant would urge that this statutory provision should be applied retroactively. We do not agree. Normally statutes do not apply retroactively.

Further, Acts 1973, 63rd Leg., p. 1460, ch. 544, enacted Title III of the Texas Family Code. Section 4 thereof reads 'Sec. 4. This Act takes effect on September 1, 1973, and governs all proceedings, orders, and judgments brought after it takes effect, and also further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. All things properly done under any previously existing rule or statute prior to the taking effect of this Act shall be treated as valid. (Emphasis supplied.)

In Lovell v. State, supra, it was stated:

'Prior to the enactment of the Family Code, a minor could waive his right to counsel before making an extrajudicial statement. Moreno v. State, Tex.Cr.App., 511 S.W.2d 273; Garza v. State, Tex.Cr.App., 469 S.W.2d 169; In re Garcia, 443 S.W.2d 594 (Tex.Civ.App.--El Paso, 1969).'

Thus the confession taken on August 21, 1971, was not governed by the provisions of the Family Code later enacted. Appellant's contention is overruled.

The remaining grounds of error relating to the confession are not briefed, no authority is cited, and no reference is made to the record. There has not been any compliance with Article 40.09, § 9, Vernon's Ann.C.C.P. See Smith v. State, 472 S.W.2d 520 (Tex.Cr.App.1971). Nothing is presented for review. Nevertheless, we have reviewed the record and find such contentions to be without merit.

Appellant also complains that the trial court erred in failing to declare a mistrial when the State's witness Bullard made reference to an extraneous shooting at the back of the police station.

On cross-examination it was developed that Bullard, a Commander in the Corpus Christi Police Department, had testified in a prior hearing that there were four lights on the wall of the police station at the time of the shooting in the instant case. It was then developed that Bullard was not at the back of the station at the time in question. Bullard was then asked by appellant's counsel:

'Q. And, are you telling us now and you testified under oath that that was true when you weren't even there? You weren't--you didn't even have an idea?

'A. Mr. Tinker--

'Q. You couldn't even testify either way?

'MR. MOBLEY (District Attorney) Let him answer the question.

'THE COURT: Yes, sir. Let him answer the question before the next question.

'A. (By witness) I testified under oath, and honestly believed in what I said at the time, but I had this shooting confused with another shooting.'

Without making an objection, the appellant requested a mistrial and a jury instruction to disregard the answer. The court denied the mistrial motion, but instructed the jury to disregard the witness' answer.

It is observed that Bullard's answer was to three questions directed to him on cross-examination and that the answer given gave to indication that the appellant was connected in any manner with the extraneous shooting.

Even if it can be argued that the answer was non-responsive, a prompt instruction to disregard a non-responsive answer is usually sufficient to cure the error, if any. Haggerty v. State, 491 S.W.2d 916 (Tex.Cr.App.1973); Noble v. State, 402 S.W.2d 758 (Tex.Cr.App.1966); Jaramillo v. State, 504 S.W.2d 853 (Tex.Cr.App.1974); Melton v. State, 508 S.W.2d 104 (Tex.Cr.App.1974). We hold that the court's instruction was curative of any error.

Appellant complains that the trial court erred in failing to sustain his objections to the following questions on redirect examination of the witness Bullard:

'Q. I have one last question, Commander Bullard. To your own personal knowledge, was any other person other than Richard Ridyolph ever indicted for the murder of John W. Sartain?

'A. To my knowledge, Richard Ridyolph is the only person that has ever been indicted for the murder of (sic) malice of Police Officer John Sartain.'

The objection offered before the question was answered was that the indictment could not be considered as evidence and the answer would further call for hearsay. The objections were overruled and the witness was permitted to answer as to his personal knowledge.

Prior to the time the question was asked and on cross-examination appellant's counsel had established through Bullard's testimony that four persons, in addition to the appellant, had been arrested for the offense charged. While there were better means of proving which persons had or had not...