Schuenemann v. State

• Decision Date: 21 November 1973
• Docket Number: No. 46691,46691
• Citation: 501 S.W.2d 319
• Parties: Raymond Warren SCHUENEMANN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 319

501 S.W.2d 319

Raymond Warren SCHUENEMANN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 46691.

Court of Criminal Appeals of Texas.

Nov. 21, 1973.

William F. Billings, Dallas for appellant.

Henry Wade, Dist. Atty., and Jerome L. Croston, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

The conviction is for burglary of a private residence at night with the intent to commit rape. Punishment was assessed at 99 years' confinement.

The record reflects that between 3:00 and 3:30 o'clock on the morning of July 23, 1970, the complaining witness, a young single woman who lived alone, was awakened by a noise in her apartment. ¹ As was her custom, she had gone to bed nude, and with the lights on. She arose and went to the foyer of the apartment, where she saw appellant with a long, thin butcher knife in his hand and one of her stockings over his head and face. She screamed, and he grabbed her and threatened to kill her of she screamed again. After they had conversed for awhile, and at his insistence had taken a shower bath together, they went into her bedroom, where, by the use of threats, and without her consent, he raped her. The knife, which was left in the apartment by appellant, was admitted in evidence as State's Exhibit No. 1. After he had gone, she immediately notified her mother and the police.

Appellant first complains of the introduction in evidence, over his objections, of certain details of his arrest, and of the admission in evidence of a knife found in the trunk of his car.

Appellant was not arrested until June 23, 1971, eleven months after the commission of the burglary. Officer Mount of the Irving Police Department testified that at about 12:45 A.M. on June 23, 1971, he stopped a car driven by appellant because it was being operated without lights. The officer was permitted to testify that appellant's clothes were bloody, and that he found a seven-inch butcher knife, the blade of which was covered with fresh blood, in the car trunk. Appellant's timely objections that the evidence of the bloody knife was inadmissible since it had no connection with the offense for which appellant was on trial, that it involved an extraneous offense, and that it was prejudicial and inflammatory, were overruled, and the bloody knife was admitted as State's Exhibit No. 3. The record establishes that this knife had no connection with the burglary of July 23, 1970, and had no relevance to any issue in the case on trial.

There is no contention by appellant that his arrest and the search of his car were illegal.

Cunningham v. State, 500 S.W.2d 820 (1973), involved a conviction for robbery, where pistols were exhibited by the robbers in the commission of the offense. At the trial, a sawed-off shotgun recovered shortly after the robbery, and on the same afternoon, from the trunk of the car in which appellant was a passenger was admitted in evidence over the defendant's objections. The shotgun had not been used in the robbery. We quote as follows from the opinion of Judge Odom speaking for the Court:

'This Court stated in Hernandez v. State, 484 S.W.2d 754 (Tex.Cr.App.1972):

"This Court has consistently held that the stae is entitled to prove the circumstances surrounding the arrest. See Jones v. State, Tex.Cr.App., 471 S.W.2d 413, and cases cited therein. An exception to this rule is where the evidence is inherently prejudicial and has no relevance to any issue in the case. ² A decision as to the admissibility of such evidence lies within the discretion of the trial judge, and this court will not reverse unless a clear abuse of discretion is shown. See generally, Lanham v. State, Tex.Cr.App., 474 S.W.2d 197.'

'In Footnote 2 of the above quote, we went on to state:

'A good example of how these rules should be applied can be found in the instant case. The trial court sustained appellant's objection to testimony concerning the recovery of a stolen television during the search. Even though such testimony concerned facts surrounding the search and arrest of appellant, it did not relate to proving that he possessed the heroin in question and could only be used to prejudice consideration of whether appellant committed the crime charged. See, Powell v. State, Tex.Cr.App., 478 S.W.2d 95.'

'Since the shotgun in question had no relevance to any issue in the case, the trial judge abused his discretion in admitting it into evidence.'

We hold on the authority of Cunningham, supra, that the trial court erred in admitting in evidence the bloody knife found in appellant's car eleven months after the commission of the offense.

As in Cunningham, supra, we next consider whether this error was of such harm as might have contributed to the conviction of appellant, and the assessment of the punishment of 99 years. Again, we quote from Cunningham:

'The general rule is that a judgment will not be reversed for error in the admission of evidence that did not injure the defendant. See 5 Tex.Jur.2d, Appeal and Error--Criminal, Section 444, p. 696. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).'

In Cunningham, the Court held the error in admiting the shotgun to be harmless, and affirmed the conviction. The properly admitted evidence of guilt was found to be overwhelming, and not dependent on the ...