Sewell v. State, 35472
| Citation | 367 S.W.2d 349 |
| Decision Date | 27 February 1963 |
| Docket Number | No. 35472,35472 |
| Parties | Clyde W. SEWELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
No attorney on appeal, Orville A. Harlan, Houston (on rehearing only), for appellant.
Frank Briscoe, Dist. Atty., Houston, Gus J. Zgourides and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is burglary, with a prior conviction for felony theft alleged for enhancement; the punishment, 12 years.
The witness Schafer, an employee of a detective agency, testified that, while on patrol at 4:00 A.M. on the night in question, he observed the rear door of a barber shop closing; that he brought his automobile to a halt and ordered whoever was in the barber shop to come out; that appellant and one Jack Broussard appeared with their hands up; and that he detained them at the shop until the police arrived in answer to his call.
Officer Walden testified that, when he arrived at the shop, he found a screwdriver which fit certain indentations made in the rear door where it had been forced open and that he took appellant and Broussard into custody.
His testimony was corroborated by that of the owner of the shop. The prior conviction was established.
Appellant did not testify but called W. L. Cole and B. W. Tilotta, both inmates of the Texas House of Corrections, who testified that they had burglarized the barber shop in question at 1:00 A.M. but had fled the scene when they thought they saw the police.
Appellant also called one Charlotte English, who testified that she had spent the evening in question with appellant and a man named Jack and that the lights on an automobile in which they were traveling went out near the barber shop in question. She stated that appellant and Jack went to look for a telephone but were apprehended by a man armed with a pistol and a flash-light, were conducted up an alley and later carried away in a patrol car.
Officer Walden was recalled in rebuttal and testified that following the arrest he drove the automobile parked near the scene, and to which he had been directed by appellant and Broussard, to the police station, that the lights worked perfectly and that he did not see Charlotte English in the vicinity.
The jury resolved what conflict there was in the testimony against appellant, and we find the evidence sufficient to sustain the conviction.
No brief has been filed on appellant's behalf. No formal bills of exception appear in the record, and we perceive no error reflected by the informal bills.
The judgment is affirmed.
ON APPELLANT'S MOTION FOR REHEARING
In his motion for rehearing appellant contends that we should reverse his conviction because the trial judge denied his request that the witness, Officer E. R. Thaler, be required to produce his offense report. Reliance is had upon Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467, and upon Jackson v. State, 166 Tex.Cr.R. 348, 314 S.W.2d 97.
Officer Thaler, having testified for the state, was asked on cross-examination whether he had refreshed his memory from his offense report, and he answered that he had. He was asked if he had the report with him and he said he did not, but that his partner probably had it out in the hall.
It was shown that the witness had not used the report in the courtroom, and that appellant's request to see it 'if he did refresh his memory before he came in here' was denied, and he excepted.
The trial court made the offense report requested a part of his qualification to appellant's informal bill of exception.
Under the rule in Gaskin v. State, 353 S.W.2d 467 () failure to require the production of a prior statement of the witness is not necessarily a denial of due process. The error may be harmless. Blum v. State, 166 Tex.Cr.R. 541, 317 S.W.2d 931; Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455; Perdue v. State, 171 Tex.Cr.R. 332, 350 S.W.2d 203; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936; Pruitt v. State,...
To continue reading
Request your trial
-
Corbett v. State
...This error is grounds for reversal only upon a showing that harm occurred. Campos v. State, Tex.Cr.App., 468 S.W.2d 81; Sewell v. State, Tex.Cr.App., 367 S.W.2d 349. Allegations that the Gaskin rule has been violated necessitate that the statement in issue be included in the appellate recor......
-
Jenkins v. State
...Gaskin, 353 S.W.2d at 469; however, we later acknowledged that the Gaskin rule "parallels the Jencks rule", Sewell v. State, 367 S.W.2d 349, 351 (Tex.Crim.App.1963) (op. on reh'g).The Jencks Act was incorporated into the Federal Rules of Criminal Procedure as Rule 26.2. United States v. Shy......
-
White v. State
...purposes only. Appellant invokes the 'use before the jury' rule and principally relies upon the language found in Sewell v. State, 367 S.W.2d 349, 351 (Tex.Cr.App.1963) to the effect that 'Reversal will result, however, without any showing of injury for denial of the defendant's timely requ......
-
Robertson v. State
...been used by the State before the jury in such a way that its contents become an issue." White, 478 S.W.2d at 511; Sewell v. State, 367 S.W.2d 349, 351 (Tex.Crim.App.1963). Rule 611 does not contain any such limitation, but simply provides that portions of the document used to refresh a wit......
-
Table of Cases
...no pet .), §§20:91.7, 20:93.1 Setzer v. United States, 566 U.S. ___, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012), §20:102 Sewell v. State, 367 S.W.2d 349 (Tex. Crim. App. 1963), §15:57.6 Shaffer v. State, 769 S.W.2d 943 (Tex. Crim. App. 1989), §12:172.1 Shankle v. State, 119 S.W.3d 808 (Tex. Cri......
-
Table of Cases
...no pet .), §§20:91.7, 20:93.1 Setzer v. United States, 566 U.S. ___, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012), §20:102 Sewell v. State, 367 S.W.2d 349 (Tex. Crim. App. 1963), §15:57.6 Shaffer v. State, 769 S.W.2d 943 (Tex. Crim. App. 1989), §12:172.1 Shankle v. State, 119 S.W.3d 808 (Tex. Cri......