Walker v. State

• Decision Date: 24 November 1976
• Docket Number: No. 52617,52617
• Citation: 543 S.W.2d 634
• Parties: Joseph Mark WALKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 634

543 S.W.2d 634

Joseph Mark WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 52617.

Court of Criminal Appeals of Texas.

Nov. 24, 1976.

Rehearing Denied Dec. 15, 1976.

Calvin A. Hartmann, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Ned B. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. Punishment was assessed by the jury at ten years.

Helen Ortega, night manager of the Seven-Eleven store on Bauman Street in Houston, was coming out of the back room of the store on October 3, 1974, when she was 'caught by surprise' by 'two white males.' Ortega identified appellant as the one who 'pulls out his gun and points at me' and 'tells me to open the cash register.' Ortega, who was pregnant at the time, testified that she was in fear of death or serious bodily injury. After she opened the cash register, appellant 'leans over and grabs the money.' Officer Wendt was on patrol in front of the store with his partner when he observed two men 'standing excessively close and hunkered over the counter' and the proprietor of the store was standing with her hands in a 'very unusual' position. The patrol car was turned around and Wendt saw appellant and the other man, identified as appellant's brother Bruce, 'run out of the store' and go in separate directions. As appellant was running, he threw a gun into the grass which was retrieved and found to contain no firing pin or clip. Appellant reached a car on Soren Street and the car had started moving before the officer stopped it and appellant was arrested. Appellant was returned to the store, where he was identified by Ortega. A rifle was found in the car with 'six live rounds in the magazine of it.'

Appellant contends that the court erred in denying him his constitutional right to representation by counsel.

Complaint is directed to the State calling appellant's counsel to the stand to testify to the effect that the State's offense report had been shown to counsel.

The State responds that appellant's question to one of the officers relative to the offense report left the impression with the jury that appellant's counsel had not seen the offense report and that the reason for calling counsel to the stand was to negate such impression.

The record merely reflects that there was a conference at the bench after appellant's counsel was called to the stand by the State. The record reflects that the following occurred:

'The Court: . . . I will permit the State to call you for one issue only which was discussed at the bench and that is relative to the offense report only and you may make any objections you like later on as you make your bill but you will take the stand.

'Mr. McCullouch (appellant's counsel): I take it the Court has overruled my objection to testify.'

On appeal, appellant urges that the State, by calling his counsel as a witness, denied him the constitutional right to representation by counsel and 'was striking over the shoulders of his counsel in an endeavor to inflame the minds of the jury to appellant's prejudice.'

The record fails to reflect that the complaints voiced on appeal were ever made in the trial court. In fact, the basis of appellant's objection in the trial court, if any, does not appear in the record. For error to be preserved for appellate review, this Court has repeatedly held that the grounds of error in one's appellate brief must comport to the objections made by counsel at trial. Sloan v. State, Tex.Cr.App., 515 S.W.2d 913; Campbell v. State, Tex.Cr.App., 492 S.W.2d 956; Gondek v. State, Tex.Cr.App., 491 S.W.2d 676; Rawlinson v. State, Tex.Cr.App., 487 S.W.2d 341.

Appellant contends that the court erred in failing to sustain his challenge of a prospective juror for cause.

Appellant recognizes the rule that, absent evidence that a defendant was forced to accept an objectionable juror or that he exhausted his peremptory challenges, he cannot be heard to complain of the court's action in overruling his challenge for cause. Adami v. State, Tex.Cr.App., 524 S.W.2d 693; Williams v. State, Tex.Cr.App., 481 S.W.2d 119; Ward v. State, Tex.Cr.App., 505 S.W.2d 832. He concedes that no such showing is made in the instant case, but urges that the burden should not be on a defendant to show that he was forced to accept an objectionable juror or that he made any request for additional peremptory challenges where he has exhausted his peremptory challenges. Appellant cites no authority to support this position and we find none. No error is shown.

Appellant contends that the court erred in failing to grant his motion for new trial 'because the trial court had abused its discretion in denying appellant's motion ofr continuance.'

Appellant's motion for continuance, filed during the course of the trial, was to secure a witness named Gonzales, who 'has information which contradicts that of the State's witnesses . . ..' No affidavit of the witness was attached to the motion for new trial, nor is there a showing under oath from any source that the witness would actually testify to the facts set out in the motion for new trial. Lapp v. State, Tex.Cr.App., 519 S.W.2d 443; Fields v. State, Tex.Cr.App., 495 S.W.2d 926; Harris v. State, Tex.Cr.App., 450 S.W.2d 629. No error is shown.

Appellant contends that the evidence was insufficient to sustain the conviction 'because the evidence was insufficient to prove appellant used a 'deadly weapon."

Appellant points to the testimony of Officer Wendt that the gun thrown down by appellant as he left the scene of the robbery did not have a firing pin or clip when it was recovered, and urges that it was not a deadly weapon under V.T.C.A. Penal Code, Sec. 1.07.

V.T.C.A. Penal Code, Sec. 29.03, 'Aggravated Robbery,' provides in pertinent part:

'(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:

(1) causes serious bodily injury to another; or

(2) uses or exhibits a...