Steese v. State

• Decision Date: 16 November 1960
• Docket Number: No. 32233,32233
• Citation: 170 Tex.Crim. 269,340 S.W.2d 49
• Court: Texas Court of Criminal Appeals
• Parties: Jack Lee STEESE, Appellant, v. STATE of Texas, Appellee.

Page 49

340 S.W.2d 49

170 Tex.Crim. 269

Jack Lee STEESE, Appellant, v. STATE of Texas, Appellee.

No. 32233.

Court of Criminal Appeals of Texas.

Nov. 16, 1960.

J. Lawton Stone (Court Appointed) San Antonio, for appellant.

Charles J. Lieck, Jr., Criminal Dist. Atty., James E. Barlow, Harry A. Nass, Jr., Asst. Criminal Dist. Attys., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for robbery by assault with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life imprisonment.

The State moves to dismiss the appeal because of the appellant's escape from custody pending the appeal. It is shown by the affidavit of Sheriff Owen Kilday of Bexar County that on August 29, 1960, appellant escaped from custody but was recaptured by the officers on August 30, 1960, and is now confined in the Bexar County jail. Under the discretion vested in this Court by Article 824, Vernon's Ann.C.C.P., where punishment of life imprisonment is assessed and the defendant is recaptured within thirty days after escape, we overrule the motion to dismiss the appeal.

The prosecuting witness, Estal Talmage Parker, who was a service station attendant at a station located on Loop 13 on Highway 181 South in Bexar County, testified that on the night in question a man drove into the station in a black and white Pontiac automobile around 3:30 a. m., stuck a gun out of the car window and asked the witness if he could 'fill that sack with the money without him killing me'; that he told the man 'Yes Sir' whereupon the man handed him a sack. The witness stated that he then placed approximately $41 in the sack and gave the sack and money to the man because he was afraid of him. Appellant was positively identified at the trial by the witness as the man who assaulted and robbed him of the money on the night in question.

Appellant's written confession made to Officer Zunker following his arrest was introduced into evidence by the State in which he admitted assaulting the injured party and robbing him of approximately $41 on the night in question.

Proof was made by the State of the two prior alleged convictions.

Testifying as a witness in his own behalf, appellant admitted the two prior convictions alleged in the indictment but denied that he assaulted and robbed the injured party. Appellant also repudiated that portion of his written confession in which he admitted having committed the robbery and stated that on the night in question he went to the service station and that the injured party gave him $20 to frame the robbery.

The jury chose to accept the testimony of the State's witness and reject that of the appellant, and we find the evidence sufficient to sustain their verdict.

Appellant's first contention is that the court erred in overruling his amended motion for new trial based upon newly discovered evidence.

In the motion appellant alleged that since the trial he had discovered evidence that: (1) the State's witness, Estal Parker, had a prior criminal record in that he had been arrested on several occasions and was charged by complaint before a grand jury in the year 1955 for the felony offense of theft by bailee; (2) that the State's witness, Estal Parker, was committed in the year 1956 to the State Hospital in San Antonio as a mentally ill person; and, (3) that appellant had learned the whereabouts of a witness, Jerry Ellison, who upon another trial would testify that the State's witness, Estal Parker, contrary to his testimony upon the trial, did in fact know the appellant.

At the hearing evidence was offered by appellant in support of the motion and it was shown that in the year 1956 the State's witness, Estal Parker, was committed by the County Judge of Bexar County to the San Antonio State Hospital for treatment as a mentally ill person for a period not to exceed 90 days and that he was released from the hospital after such period of time. Medical testimony was offered by the State that the witness was mentally competent and of sound mind on the date the offense was committed and up to the time of the hearing.

We find no error in the court's refusal to grant a new trial.

The order committing the State's witness, Estal Parker, to the hospital for treatment as a mentally ill person for a period not to exceed 90 days did not, under the provisions of Article 5547-83, Vernon's Ann.Civ.St., and under the former law, Article 3193, V.R.C.S., repealed, Acts 1957, 55th Legislature, Ch. 243, par. 103, p. 505, constitute a determination of his mental competency.

Evidence that the prosecuting witness had been arrested and charged by complaint with the offense of theft by bailee would merely impeach him as a witness. The discovery of such evidence would not require the granting of a new trial. Malone v. State, 150 Tex.Cr.R. 154, 199 S.W.2d 176. Furthermore, evidence of...