Watson v. State
| Decision Date | 04 September 1986 |
| Docket Number | No. 2-83-207-CR,2-83-207-CR |
| Citation | 715 S.W.2d 864 |
| Parties | Jimmie Davis WATSON, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Douglas H. Parks, Dallas, for appellant.
Henry Wade, Crim. Dist. Atty., Gilbert P. Howard, Mark Nancarrow and Donald Land, Asst. Dist. Attys., Dallas, Robert Huttash, State Pros. Atty., Austin, for State.
Before FENDER, C.J., and JOE SPURLOCK, II, and CLYDE R. ASHWORTH (Retired, Sitting by Assignment), JJ.
Appellant, Jimmie Davis Watson, was convicted by a jury for the offense of burglary of a habitation. See TEX. PENAL CODE ANN. sec. 30.02 (Vernon 1974). The jury found the enhancement paragraph of the indictment was true, and the court sentenced Watson to 25 years imprisonment.
This Court reversed the judgment and remanded the case for a new trial based on error in the court's charge. 1 Subsequently, the Texas Court of Criminal Appeals reversed this Court's decision and held that the error in the court's charge was harmless. 2 The case is now before us for consideration of appellant's remaining grounds of error, numbers one through three and number five. For a complete discussion of the facts in this case, see the two previous opinions.
We affirm.
Appellant argues that (1) the trial court erred in overruling his motion for mistrial regarding testimony about an extraneous offense; (2) the evidence to support the judgment in the conviction used to enhance punishment was insufficient; and (3) the trial court erroneously refused a charge on circumstantial evidence. In ground of error number five, appellant argues that the trial court erred in admitting his oral inculpatory statements.
In order to review the first ground of error pertaining to the trial court's alleged error in overruling a motion for mistrial a short discussion of the circumstances leading to the motion is necessary.
At trial, two police officers testified about the circumstances of appellant's arrest that took place six days following the burglary for which he was on trial. The first officer said he saw appellant "jimmying" the door to a house and looking in the window. The second arresting officer said he removed a screwdriver from appellant's pocket. The officers compared the pry marks around the door with the width of the screwdriver and found that the width of the screwdriver was consistent with the marks on the door. Appellant did not object to this testimony.
Subsequent to this testimony, the State attempted, through the arresting officer, to introduce the screwdrivers found on appellant and his accomplice in this apparent attempted burglary. When the State made its offer, appellant's counsel stated:
To which we object. It's not only these items that they're offering, but the entire testimony of these last two witnesses is totally irrelevant to this trial. It's doing no more than attempt by the State to show an extraneous offense that has nothing to do with the case on trial.
Thereafter, a discussion was held at the bench, which was not recorded by the court reporter, and the court sustained the objection. Appellant requested that the jury "be instructed to disregard the State's offer." The court responded Appellant moved for a mistrial, and this motion was overruled by the court.
On appeal, appellant urges that the court erred in allowing the testimony of the two officers and in overruling his motion for mistrial. He urges that all this evidence regarding the apparent attempted burglary, which occurred six days later than the instant offense and in the neighborhood of the instant offense, constituted evidence of an extraneous offense irrelevant to the case on trial; and that furthermore, any relevancy of such evidence was outweighed by its inflammatory and prejudicial potential. He argues that his "MOTION FOR HEARING ON ADMISSIBILITY OF ANY EXTRANEOUS OFFENSES", which was granted by the trial court prior to trial, somehow preserved the error for this court.
The motion filed by appellant was, in essence, a motion in limine. See 7 M. MCCORMICK & T. BLACKWELL, TEX. CRIMINAL FORMS AND MANUAL sec. 43.23 (Texas Practice 9th ed. 1985). Reliance on a motion in limine will not preserve error; any remedy available with regard to a violation of a motion in limine is with the trial court. Gonzales v. State, 685 S.W.2d 47, 50-51 (Tex.Crim.App.1985), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985); Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App.1979); Brazzell v. State, 481 S.W.2d 130, 131 (Tex.Crim.App.1972).
Appellant did not timely object to the testimony of the two officers. An objection must be urged at the earliest opportunity for anything to be presented for appellate review. Marini v. State, 593 S.W.2d 709, 714 (Tex.Crim.App.1980). We note that the cautious trial judge instructed the jury to disregard the question and answer regarding the identification of the screwdrivers. Generally, an instruction to disregard will cure the error, if any. Coe v. State, 683 S.W.2d 431, 436 (Tex.Crim.App.1984). Furthermore, even assuming arguendo that appellant preserved error with regard to the testimony of the two arresting officers, we find that any error in allowing the jury to hear the officer identify the screwdrivers before objection was harmless beyond a reasonable doubt. See Johnson v. State, 660 S.W.2d 536, 538 (Tex.Crim.App.1983). Appellant's first ground of error is overruled.
In his second ground of error, appellant maintains that the State failed to produce sufficient evidence to prove the allegations in the enhancement paragraph of the indictment. The enhancement paragraph asserts that the appellant was duly and legally convicted of aggravated robbery in 1979, prior to the commission of the instant burglary.
Appellant stipulated at trial that he was the same person as the person convicted in the aggravated robbery case, but he argues that the proof of the aggravated robbery fatally varies from the indictment charging appellant with aggravated robbery. The indictment charged that appellant
did ... while in the course of committing theft of current money of the United States of America, hereinafter called "the property" from Gustavo Cuello, with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a pistol knowingly and intentionally cause bodily injury to Gustavo Cuello.
The only evidence in the instant trial of the proof in the aggravated robbery case consists of a document, filed in the prior case, titled "WAIVER OF JURY-AGREEMENT TO STIPULATE-APPLICATION FOR PROBATION-WAIVER OF DELAY IN SENTENCING-WAIVER OF APPEAL". This document, signed in various places by appellant, reads in pertinent part:
I judicially confess that ... I did, while in the course of committing theft of current money, hereinafter called "the property" from Gustavo Cuello, with the intent to obtain and maintain control of the property, knowingly and intentionally cause serious bodily injury to Gustavo Cuello, as charged in the indictment.
The State proved up the prior judgment and sentence and identified appellant as the person convicted therein. As the State made a prima facie case against appellant, the burden then shifted to appellant to show such irregularities as would void the previous conviction. Tinney v. State, 578 S.W.2d 137, 139 (Tex.Crim.App.1979).
The instant appeal involves a collateral attack on the aggravated robbery conviction. See Acosta v. State, 650 S.W.2d 827 (Tex.Crim.App.1983); Berry v. State, 582 S.W.2d 463 (Tex.Crim.App.1979). Although sufficiency of the evidence may not be collaterally attacked, this Court is permitted to consider, in a collateral attack, a claim that there was no evidence to support the guilty plea in the aggravated robbery conviction. Ex parte Moffett, 542 S.W.2d 184, 185 (Tex.Crim.App.1976). It may be true that the evidence before us demonstrates a variance between the proof and the indictment. However, the record before us and before the trial court did not contain a transcription of the court reporter's notes of the bench trial for the aggravated robbery. Without such transcription, appellant fails to support his inferred contention that there was no evidence to support the aggravated robbery conviction. See Ex parte Dantzler, 571 S.W.2d 536, 539 (Tex.Crim.App.1978) (opinion on reh'g); Wolfe v. State, 560 S.W.2d 686, 688 (Tex.Crim.App.1978). Thus, we hold that appellant's ground of error is an impermissible collateral attack on the aggravated robbery conviction. See Dantzler, 571 S.W.2d at 539; Wolfe, 560 S.W.2d at 688. The second ground of error is overruled.
The third ground of error alleges that the trial court erred in failing to charge the jury on the law of circumstantial evidence. Appellant's oral confession was direct and complete proof that he was a party to the burglary. See Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App.1984) () Thus, a charge on circumstantial evidence was unnecessary. See Marini, 593 S.W.2d at 714. This case was tried before the rule in Hankins v. State, 646 S.W.2d 191, 197 (Tex.Crim.App.1983) (opinion on reh'g), was announced abolishing the requirement for a "circumstantial evidence" charge. Appellant's third ground of error is overruled.
In his fifth and final ground of error, appellant asserts that the trial court committed reversible error by admitting into evidence certain oral inculpatory statements made by appellant during several post-arrest interrogations by police officers. Appellant claims that these statements were not freely and...
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