Rodriguez v. State, 40516
| Decision Date | 12 July 1967 |
| Docket Number | No. 40516,40516 |
| Parties | Francisco RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Arturo R. Aguirre, El Paso, for appellant.
Barton Boling, Dist. Atty., Robert D. Earp, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for burglary; the punishment, six years.
It was shown by the state's testimony that on the night in question during an electrical blackout in the city of El Paso, the appellant and his co-indictee, Enrique Granados, were stopped by Officer Williams when he observed them jaywalking and staggering across a street from the B. F. Goorich store. The two had come out of an alley which ran behind the store. At the time, appellant and Granados were carrying some articles, consisting of a perculator and transistor radios. Appellant was carrying the perculator and one radio. Some of the articles bore tags of the B. F. Goodrich Company. An immediate investigation revealed that the Goodrich store building had been burglarized.
Appellant did not testify but called as a witness his co-indictee, Granados, who had been convicted of the burglary in a separate trial and was serving a six-year sentence in the Department of Corrections.
Granados swore that it was he (Granados) who committed the burglary and that he acted alone in the commission of the offense. He swore that he stashed the stolen articles in a trash can and that later he returned to the scene with appellant and gave him some of the articles to carry away. On cross-examination, Granados admitted that after his arrest he gave a statement to the police in which he implicated appellant in the burglary by stating that appellant was waiting on the sidewalk for him when he (Granados) came out of the building.
The issue of appellant's guilt was submitted to the jury upon a charge on the law of principals and circumstantial evidence.
Two grounds of error are urged by appellant in his brief filed in the trial court.
He first complains of the court's refusal to grant his motion for a mistrial when the state's attorney, in his final argument to the jury, stated:
The bill of exception and record reflect that at the time such argument was made, the following transpired:
No request was made by appellant that the court instruct the jury not to consider the argument.
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