Viduarri v. State
| Decision Date | 09 December 1981 |
| Docket Number | No. 61340,No. 3,61340,3 |
| Citation | 626 S.W.2d 749 |
| Parties | Policarpio Paul VIDUARRI, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Duncan F. Wilson and Carroll Clarke Cook, Jr. (on appeal only), Austin, for appellant.
Ronald Earle, Dist. Atty. and Bill White, Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and DALLY, JJ.
This is an appeal from a conviction for aggravated rape. Punishment was assessed at life.
In his first ground of error appellant argues the jury charge should have included an instruction on the lesser included offense of rape by force. V.T.C.A., Penal Code Sec. 21.02(b)(1). The indictment alleged rape and aggravated rape by threats. V.T.C.A., Penal Code Secs. 21.02(b)(2) and 21.03(a)(2). Rape by force was not an included offense in this case, and a jury charge and conviction under that theory would have constituted fundamental error. See Lowry v. State, Tex.Cr.App., 579 S.W.2d 477; Jackson v. State, Tex.Cr.App., 591 S.W.2d 820. It was proper for the trial court to refuse the charge. The ground of error is overruled.
Appellant next complains of the charge on his failure to testify. The jury was instructed:
Appellant argues that the use of the word "failure" was prejudicial, and requested use of more neutral language. The charge given was substantially the same as the provisions of Art. 38.08, V.A.C.C.P. Furthermore, when a refused charge is adequately covered by the charge given, no harm is shown. Sheppard v. State, Tex.Cr.App., 545 S.W.2d 816, 819. We find no harm and overrule the ground of error.
Finally, appellant challenges the search of the car in which the offense was committed. Since the car was a stolen vehicle, appellant is in no position to challenge the search. The ground of error is overruled.
The judgment is affirmed.
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Angel v. State
...of a vehicle cannot be said to have standing by virtue of his presence if he is in possession of a stolen vehicle. Vidaurri v. State, 626 S.W.2d 749 (Tex.Cr.App.1981); United States v. Kucinich, 404 F.2d 262 (6th Cir.1968); State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983); People v. Pea......
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...the search and seizure of the stolen vehicle which he gained possession of only by reason of his criminal conduct. Viduarri v. State, 626 S.W.2d 749, 750 (Tex.Cr.App.1981); Bodde v. State, 568 S.W.2d 344, 352 The arrest and search of the appellant's person, however, presents an entirely dif......
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Zani v. State
...included in the charge given: the trial court did not err. See Davis v. State, 651 S.W.2d 787 (Tex.Cr.App.1983); Viduarri v. State, 626 S.W.2d 749 (Tex.Cr.App.1981); United States v. Harrelson, 705 F.2d 733 (5th Cir.1983). Furthermore, if given, the requested instruction would have constitu......