Robinson v. State

• Decision Date: 16 April 1969
• Docket Number: No. 42018,42018
• Citation: 441 S.W.2d 855
• Parties: Albert David ROBINSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

441 S.W.2d 855

Albert David ROBINSON, Appellant, v. The STATE of Texas, Appellee.

No. 42018.

Court of Criminal Appeals of Texas.

April 16, 1969.

Rehearing Denied June 18, 1969.

Max Blankenship, Fort Worth, on appeal only, for appellant.

Henry Wade, Dist. Atty., Tom Reese, Charles Caperton, Kerry P. FitzGerald, Malcolm Dade, James P. Finstrom and Camille Elliott, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is embezzlement of one man's suit over the value of $50.00; the punishment, 5 years' confinement in the Texas Department of Corrections.

The State's evidence reflects that on the morning of March 28, 1966, Edward Feazell (Credit Manager), Fred Bowling (Personnel Director), Troy Cox and Bill Combest (Security Officers) all employees of the James K. Wilson Company went to the company store in the Wynnewood shopping area of Dallas. Cox and Combest were also off-duty City of Dallas police officers. At the Wynnewood store they contacted the appellant, Assistant Receiving Manager for the five James K. Wilson Stores, with regard to their investigation into a large amount of missing merchandise. Appellant was told he did not have to talk to them; that he was free to go and was not under arrest and could call an attorney if he desired. Appellant then readily admitted that in the course of his employment he had taken some 18 suits (including the one in question) and other merchandise including practically all of his present wearing apparel. He invited the company officials to accompany him to his home in Mesquite, Texas, to demonstrate that he was responsible for only a small part of the missing merchandise.

On their way to appellant's home they were met by a Dallas police officer with a written consent to search form which was executed by appellant after it was explained to him that company officials had no search warrant and had no right to search except with his consent which he did not have to give.

At appellant's request they stopped approximately a block from appellant's home and he proceeded alone to his house to persuade his wife to leave. Upon appellant's return they proceeded to the house where appellant handed the company personnel from his closet the black Kattegara silk suit, the subject of this prosecution, as well as other items he stated he had taken. No search of the house was made and the company personnel took only items designated by the appellant. At this point appellant was arrested and taken to the Dallas City Hall where Officer Combest made a written memorandum of appellant's oral confession.

Evidence was offered to show that the retail value of the suit was $135.00 and its wholesale value was $70.00, and that the black Hart, Schaffner and Marx suit had been converted to appellant's use without consent.

Appellant did not testify or offer any evidence in his behalf.

Initially, appellant contends the trial court erred in overruling his motion for mistrial when State's witness, Ed Feazell, volunteered prejudicial information in an unresponsive answer to a question asked on direct examination.

After being cautioned not to go into the conversation, the witness was asked:

'Q. As a result of that conversation, did you do anything or contact anybody?

'A. Yes. The conversation we had, we apprehended him (Barker) with some stolen merchandise and he implicated Mr. Robinson (appellant).'

Appellant's objection was sustained and the court promptly instructed the jury to disregard the answer 'for any purpose.' The motion for mistrial was, however, denied. Under these circumstances we perceive no error. Noble v. State, Tex.Cr.App., 402 S.W.2d 758; Ramsey v. State, 165 Tex.Cr.R. 409, 308 S.W.2d 26; Sligar v. State, 166 Tex.Cr.R. 365, 313 S.W.2d 613; Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575; Lawhon v. State, Tex.Cr.App., 429 S.W.2d 147; Moore v. State, Tex.Cr.App., 434 S.W.2d 852; Harris v. State, Tex.Cr.App., 435 S.W.2d 502.

Further, the same evidence was elicited without objection from State's witness Combest when he related his initial conversation with appellant on March 28, 1966. Still further, appellant inquired into the same matter on cross-examination of Combest.

Ground of error #1 is overruled.

In view of the facts recited above, we find no error in the admission into evidence of the written waiver or consent to search form or the black suit, subject of this prosecution, recovered at appellant's home. It is observed that the suit was not obtained as a result of a search but was handed to the officers by appellant after they had entered his house with his consent.

Grounds of error #2 and #3 are overruled.

Next appellant contends the trial court erred in admitting into evidence State's Exhibit Four (appellant's oral confession reduced to written memorandum).

It has long been the law in this state that oral confessions, voluntarily made, while in custody or not, that lead to the fruits of a crime are admissible despite the absence or inadequacy of statutory warnings required for written statements taken while in custody. See Article 38.22 (former Article 727), Vernon's Ann.C.C.P. The validity of an oral confession does not depend upon a showing that the accused was taken before a magistrate (See Article 15.17, V.A.C.C.P.) prior to such oral statement. In reducing appellant's oral confession to a written memorandum signed and witnessed...