Walker v. State

• Decision Date: 12 May 1989
• Docket Number: No. 12-87-00158-CR,12-87-00158-CR
• Citation: 823 S.W.2d 302
• Parties: Daniel Wayne WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 302

823 S.W.2d 302

Daniel Wayne WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 12-87-00158-CR.

Court of Appeals of Texas,

Tyler.

May 12, 1989.

Discretionary Review Granted Aug. 30, 1989.

Rehearing Denied Oct. 23, 1991.

Daniel Wayne Walker, Rosharon, pro se.

Jack Skeen, Jr., Dist. Atty., Tyler, for appellee.

COLLEY, Justice.

Daniel Wayne Walker was convicted by a jury of burglary of a building. ¹ The trial judge assessed his punishment ² at 40 years. The record reveals that on September 4, 1986, a K-Mart store located on Northwest Loop 323 in Tyler was burglarized. Entry was gained by breaking the glass doors located on the west side of the building. Two television sets and a number of firearms were removed by the burglars. The gun case from which the firearms were taken had glass doors which were broken out. We will reverse and order an acquittal.

Although Walker was represented at trial by appointed counsel, he brings this appeal pro se. Walker asserts six points of error. By his first point he contends that the evidence is insufficient to sustain his conviction. He claims under his second point of error that the indictment in the cause is fundamentally defective. Under his third point of error he asserts that the visiting judge who heard his case had no authority to do so. He contends by his fourth point of error that the court erred in instructing the jury on the law of parties. By his fifth point, he alleges that the court erred in "admitting testimonie [sic] of extraneous offense during trial." Finally, by his sixth point of error, he argues that the "trial court" erred in "sending false documents to [this court] under false pretense."

The circumstantial evidence is fairly summarized as follows. Two of Walker's right-hand palm prints were found on the side and on the screen of one of the television sets taken in the burglary. The television was found by an officer outside the building. The evidence shows that at a time after the police had been informed that the palm prints had been so identified, an arrest warrant was issued for Walker. Police Officer Richard Sanders apprehended Walker who, when asked by Sanders if he was Daniel Wayne Walker, replied that his name was Fred Walker, Daniel Wayne Walker's brother. Sanders then asked Walker if he would voluntarily accompany him to the Tyler Police Station and submit his fingerprints for comparison to known prints of Daniel Wayne Walker. Walker agreed, but before they left the area where Walker was apprehended by the officer, a black passenger in a passing vehicle "leaned out of the window and hollered 'Hi Danny.' " Officer Sanders then arrested Walker and took him to the police station where he was advised that he was under arrest for the burglary of a building. The officer testified that he did not identify the particular building that had been burglarized. Thereafter, Sanders transported Walker to the Smith County Jail to book him in as a prisoner. While the paper work was being processed, an unidentified black man sat down beside Walker at the jail and asked Walker why he was there. Walker initially responded that he was charged with burglary, whereupon the black male asked Walker, "What burglary?" To this question Walker answered, "They got me in here on the burglary of K-Mart up north but I didn't do it."

The record also reveals that the investigating officers lifted three sets of fingerprints from surfaces at the burglary scene. A comparison of these latent prints was made to known prints of Walker and three other suspects in the case. According to the testimony of the State's fingerprint expert, the latent prints did not match the known prints of Walker or the other suspects. Additionally, the evidence shows that some unidentified person or persons suffered severe cuts while breaking the glass doors of the gun case from which the firearms were taken.

We have carefully examined the indictment ³ in this cause and find that it correctly charges the offense of burglary of a building as that offense is defined by section 30.02. Walker's second point of error is overruled.

Walker's trial was presided over by the Honorable Richard Davis who, at the time of trial, as we judicially notice, was the duly elected and sitting judge of the 294th District Court of Van Zandt and Wood Counties. The record does not contain an assignment of Judge Davis to this case or to the 241st Judicial District Court of Smith County pursuant to Tex. Gov't Code Ann. § 74.056(a) (Vernon Supp.1988); nor does the record contain any evidence that he exchanged benches with the elected judge of the 241st District Court pursuant to Tex. Const. art. 5, § 11. Walker, however, did not object to, or challenge, the right or authority of Judge Davis to sit in his case. He therefore waived his right to complain thereof in this court. Under the circumstances, a presumption obtains that Judge Davis was either assigned to the 241st District Court pursuant to Texas Government Code provisions or had exchanged benches pursuant to the Texas Constitution. Floyd v. State, 488 S.W.2d 830, 832 (Tex.Cr.App.1972), and Woods v. State, 569 S.W.2d 901, 903 (Tex.Cr.App.1978). The third point of error is overruled.

Walker complains under his fourth point of error that the court reversibly erred by including in the court's charge at the guilt-innocence phase an abstract charge on the law of parties. The charge complained of, and objected to at trial, reads:

All persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.

The State argues in response that since the law of parties was not applied to the facts of the case, and since the evidence did not require the charge on the law of parties, no error exists. If error does, however, exist, the State alternatively argues that such error is harmless under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984). This argument necessarily assumes that the abstract charge is not effective to authorize a jury to convict Walker if they found that Walker was criminally responsible for the burglary committed by other persons under Tex.Penal Code Ann. § 7.01(a) and § 7.02(a)(2) (Vernon 1974), which are embodied in the abstract charge.

We are persuaded that the circumstantial evidence raises the fact issue of whether Walker was guilty as a party to the offense under sections 7.01(a) and 7.02(a)(2) of the Texas Penal Code. Hence the court did not err in overruling Walker's objection to the charge on "the law of parties." ⁴ The fourth point of error is overruled.

With respect to Walker's fifth point of error, we have carefully reviewed the record and find no testimony or evidence introducing any extraneous offense, or any objection relating thereto. The point of error is overruled.

Walker's sixth point of error does not relate to any proceeding before the trial court or jury during the criminal trial itself. It is patently unmeritorious and is overruled.

We now address Walker's first point of error, whereby he claims that the evidence is insufficient to sustain his conviction. In so doing, we must "measure" or evaluate the evidence in light of the court's entire charge. Boozer v. State, 717 S.W.2d 608, 610-611 (Tex.Cr.App.1984); Benson v. State, 661 S.W.2d 708, 714 (Tex.Cr.App.1982). It is clearly established that the trial court must "fully instruct the jury on the law applicable to the case and to apply ⁵ that law to the facts presented. Article 36.14 Vernon's Ann.C.C.P.; Rider v. State, 567 S.W.2d 192 (Tex.Cr.App.1978)." (Citations omitted.) See Jackson v. State, 633 S.W.2d 897, 899 (Tex.Cr.App.1982).

In Romo v. State, 568 S.W.2d 298, 302-304 (Tex.Cr.App.1978), the defendant was indicted for murder. The indictment charged that he "did ... intentionally and knowingly cause the death of an individual ..., by shooting him with a gun...." The "application" paragraph of the court's charge tracked the indictment, authorizing the jury to convict Romo only as the primary actor. In a subsequent paragraph, the court abstractly instructed the jury on the law of parties pursuant to Tex.Penal Code Ann. § 7.01(a), (b) and § 7.02(a)(2). Judge Odom, who wrote the opinion on Romo's motion for rehearing, noted that "[n]o evidence supported submission of the case on the theory that [Romo] was the primary actor." Id. at 299. Judge Odom declared for the court that the trial court's failure to apply the law of parties to the facts constituted "fundamental reversible error in the ... charge...." Id. at 300. The State's motion for rehearing, however, was then granted with a plurality opinion by Judge Dally. After deciding that, absent an objection on the part of appellant, the failure of the trial court to apply the law of parties to the facts is not reversible error, the Romo court proceeded to consider and overrule Romo's point of error "that the evidence is insufficient to show [Romo's] criminal responsibility for the acts of the co-defendant who shot the deceased." Id. at 303. Since Romo is a pre-Benson case, its ruling on the insufficiency point did not take Benson 's rule into account. To the contrary, the Romo court recited the facts and circumstances proved by the State by direct evidence, and, according to the opinion, those facts and circumstances were ample to support Romo's conviction as a party.

For purposes of our opinion, we must assume that Benson and Boozer do not permit this Court to measure the...