Ward v. State

• Decision Date: 12 March 1975
• Docket Number: No. 49646,49646
• Parties: Michael WARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 395

520 S.W.2d 395

Michael WARD, Appellant, v. The STATE of Texas, Appellee.

No. 49646.

Court of Criminal Appeals of Texas.

March 12, 1975.

Fred J. Manning, San Antonio, for appellant.

Ted Butler, Dist. Atty., Bill White, Lucien Campbell and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of accomplice to robbery by assault. Punishment was assessed by the court at five years.

Appellant in his first ground alleges jury misconduct in that the jury during its deliberations discussed and considered the failure of the appellant to testify.

Attached to appellant's amended motion for a new trial is an affidavit of the juror Gilbert Cisneros in which he stated the fact that there was speculation among the members of the jury during their deliberations as to why appellant did not testify. At a hearing, testimony of four of the jurors showed that this fact was briefly mentioned during deliberation, but was suppressed when other jurors including the foreman promptly informed the jurors that they could not discuss or consider the failure of appellant to testify. Thereafter, such discussion stopped, and the jury confined their remarks to a discussion of the evidence.

In Howard v. State, Tex.Cr.App., 484 S.W.2d 903, the Court quoted from Beets v. State, 154 Tex.Cr.R. 275, 226 S.W.2d 853, as follows:

'A bare allusion in the jury room to defendant's failure to testify when immediately suppressed will not of itself cause the judgment of conviction to be set aside,' citing many authorities.

We have reviewed the testimony on the hearing of the motion for a new trial, and conclude that the remarks of the jurors were not of such a nature as to cause reversal. Broussard v. State, Tex.Cr.App., 505 S.W.2d 282; Ratliff v. State, Tex.Cr.App., 490 S.W.2d 844.

The first ground of error is overruled.

In his second ground, appellant complains because the court refused to grant his motion to discharge the jury panel after he was exposed to them in handcuffs.

The record fails to reflect that any member of the panel saw the appellant in handcuffs. At a hearing on the motion for new trial, the bailiffs who escorted appellant from the jail to the courtroom through the courthouse corridors were unable to state that any member of the jury panel saw appellant while he was handcuffed. Two members of the panel were placed on the stand by appellant, and neither testified that he or she saw handcuffs. The only witness who testified that appellant was exhibited to jurors while handcuffed was appellant himself, and he was not sure that any member of the panel noticed this. No evidence of injury or prejudice appears in the record. Cline v. State, Tex.Cr.App., 463 S.W.2d 441; Ramirez v. State, Tex.Cr.App., 383 S.W.2d 606. See Ex parte Slaton, Tex.Cr.App., 484 S.W.2d 102.

The second ground of error is overruled.

The next complaint, contained in appellant's third ground, is that the court erred in overruling his motion for continuance, filed on the day the case went to trial, in which appellant alleged that his counsel had not had sufficient time to prepare for trial.

The record reflects that appellant's trial counsel was appointed on May 29, 1973. The trial of the case was set for October 1, 1973. Appellant's first motion for continuance alleged insufficient time to prepare for trial, and asked for a November setting. This was granted, and on October 1 the case was reset for November 26. On November 26, when the case was called for trial, appellant filed the instant motion stating only equitable grounds; i.e., that counsel by reason of previous commitments and the press of other business, and the complicated nature of the case, had not had adequate time to prepare for trial. The court did not abuse its discretion in overruling the motion. Hicks v. State, Tex.Cr.App., 508 S.W.2d 400; Hernandez v. State, Tex.Cr.App., 492 S.W.2d 466.

The fourth ground of error raises the complaint of double jeopardy.

On a former trial of appellant for the same offense, a motion to quash the indictment had been overruled, and the trial proceeded to a verdict of guilty and assessment of punishment of five years. A motion for new trial was, on first presentation, overruled and sentence was rendered, and notice of appeal given. Thereafter, before any appellate record was filed in this Court, the trial court concluded that that indictment was defective, and granted the motion for a new trial and dismissed the case.

The instant trial was based on a new indictment presented by the grand jury after the above proceedings. On the day this trial started, appellant's Plea of Former Jeopardy was overruled.

The record reflects that the first indictment failed to allege to whom the property that was taken in the alleged robbery belonged. Due to such failure, the indictment was fatally defective, since it did not allege the commission of an offense against the law. Article 27.08, Section 1, Vernon's Ann.C.C.P.; Lucero v. State, Tex.Cr.App., 502 S.W.2d 128 (First case). An indictment which does not allege an offense against the law 'is utterly insufficient and any conviction based thereon is void.' American Plant Food Corporation v. State, 508 S.W.2d 598, at 603, and authorities there cited; Stadley v. State, Tex.Cr.App., 517 S.W.2d 538; Shane v. State, Tex.Cr.App., 513 S.W.2d 579. Since a conviction in a trial based on a fatally defective indictment is a nullity, the court would have been justified on the motion of either party or on his own motion to declare a mistrial at any stage of the trial, and in such event jeopardy would not attach. Illinois v. Somerville, 93 S.Ct. 1066, 410 U.S. 458, 35 L.Ed.2d 425. Jeopardy did not attach as a result of the first trial on the fatally defective indictment.

Additionally, the record before us does not establish that the order granting the appellant's motion for new trial was not legally entered. The burden was on appellant at the second trial to go forth with evidence in support of his allegation of former jeopardy. Shaffer v. State, Tex.Cr.App., 477 S.W.2d 873. The order granting the appellant's motion for new trial is not in the record; however, the docket sheet reflects that said order was entered while the appellate procedure was still in the trial court and before that court lost jurisdiction. See Reed v. State, Tex.Cr.App., 516 S.W.2d 680; Perkins v. State, Tex.Cr.App., 505 S.W.2d 563. In the absence of a showing to the contrary, we will presume that the court followed the proper procedure set forth in Article 40.09, V.A.C.C.P. and in Robinson v. State, Tex.Cr.App., 505 S.W.2d 298 in granting the motion for new trial. 47 Tex.Jur.2d, p. 153, et seq., Public Officers, § 118. Appellant agreed in his Plea of Former Jeopardy that:

'Counsel for the defendant Presented to the court a motion for a new trial, alleging again the defect in the indictment as pointed out in the pre-trial motion and Upon hearing said motion for new trial was granted' (Emphasis added).

Under the circumstances, the trial court had the jurisdiction to grant the motion for a new trial, and dismiss the case.

The court did not err in overruling appellant's plea of former jeopardy. The fourth ground of error is overruled. Appellant's fifth ground of error reads:

Trial Court committed reversible error in failing to sustain Defendant's Motion for New Trial and Amended Motion for New Trial, because the State's evidence fail as a matter of law to prove that Michael Ward was an accomplice to the offense of robbery by assault.'

Appellant's argument is that the evidence of the accomplice witnesses used by the State was not sufficiently corroborated by other evidence tending to connect appellant with the offense as an accomplice offender.

The indictment charges in substance that on or about July 21, 1972, Daniel Daley, Dudley Sanford and Richard Sanford robbed Ernest Hyman of money, and that on July 20, 1972, appellant Michael Ward advised, commanded and encouraged them to commit said offense, he not being present at its commission.

The accomplice witnesses referred to in appellant's discussion under this ground were the two robbers, Daniel Daley and Dudley Sanford, and Donna Hoberg, girl-friend of Dudley. The court instructed the jury that each of these was an accomplice witness as a matter of law. Appellant also contends, in his sixth ground of error, that State's witness Alan Samford was an accomplice witness as a matter of law, and that the court erred in submitting as a fact issue whether the was an accomplice witness.

The substance of the testimony of Daniel Daley, Dudley Sanford, and Donna Hoberg may be stated as follows:

Alan Samford, his wife Diane, Richard Sanford, Dudley Sanford and his girlfriend Donna Hoberg, lived in the same house. Late in the evening of July 20, 1972, appellant and Bill Turner came to the house and had a long conversation with Richard and Dudley Sanford and Dan Daley. He offered them.$1000.00 plus all the money they took in the robbery to steal a large diamond ring from the Hymans. They agreed to commit the robbery that night (July 20). The two Sanfords and Daley went with appellant and Turner to Hyman's home, and the Sanfords and Daley went to the front door, but left due to a disturbance outside of the house. After another conference with appellant and Turner, it was agreed that they would steal the ring the next day at Hyman's store in the North Star Mall. They met at the Mall the next day, but this plan also failed without any effort being made to accomplish it. The Sanfords and Daley then decided to call it off, but were told by appellant that if the diamond ring was not stolen the person behind the deal 'would wipe us out.' It was then planned between the two Sanfords, Daley, appellant and Turner for the robbery to be committed by the...