Wilson v. State, 09-91-142
| Decision Date | 12 August 1992 |
| Docket Number | No. 09-91-142,09-91-142 |
| Citation | 835 S.W.2d 278 |
| Parties | Elbert WILSON, Appellant, v. The STATE of Texas, Appellee. CR. |
| Court | Texas Court of Appeals |
Michael Askins, Lufkin, for appellant.
Ed C. Jones, County Atty., Lufkin, for state.
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
On October 19, 1990, an information was filed charging the Appellant with the offense of theft. A juried proceeding followed. The Appellant was found guilty of the offense as charged. The punishment went to the bench. The Appellant was sentenced to a $500 fine and six months confinement. The jury returned this verdict: "We, the jury, find the Defendant guilty as charged" signed by the presiding juror.
The information alleged that the Appellant had exercised control over one jar of Noxema skincream, one Efferdent, one picture frame and one box of shotgun shells of the value of more than $20 but less than $200 from Wal-Mart Stores, Inc., d/b/a Wal-Mart Discount # 140, owner of the items and against its consent. The six months imprisonment was to be served in the county jail. The order involved provided that the verdict and finding of guilty should not become final and that no judgment be actually rendered thereon and that the Appellant be placed on probation for a period of six months under a number of conditions of probation.
The Appellant has advanced seven points of error.
The Appellant's first point of error is that the trial court erred in admitting into evidence the prosecuting attorney's leading question and allowing it to be answered. As we perceive the question and the answer, there was no harm visited upon the Appellant. But more importantly, we perceive that two other witnesses at two other places in the record testified to virtually the same evidence. Witness Selman and witness Scott made identification of the property that Officer Adams was quizzed about. We overrule point of error one.
The second point of error is that the trial court erred in rejecting the Appellant's tender of certain evidentiary matters. The gravamen of this point is that the trial court simply determined that evidence of other occasions and incidents wherein this Appellant's wife wrote certain checks to Wal-Mart was irrelevant and not material to the offense of theft on the date in question. The date was October 19, 1990. That was the crucial date for which the Appellant was charged and later tried for theft. The trial court simply did not permit into the record unrelated transactions with Wal-Mart conducted by the Appellant's wife. The trial court did, however, permit one exhibit reasoning that this admitted exhibit had an indirect connection with the offense. No error was committed. TEX.R.CRIM.EVID. 401, 402. Appellant concedes in his brief that he has cited no authority in support of his point of error number two.
The seventh point was that the trial court erred in denying Appellant's motion for a new trial. We have read and analyzed the proceedings in connection with the motion for new trial. The gravamen of the motion for new trial was that there had been an improper conversation between the county attorney and one of the State's witnesses. The thrust of the alleged conversation was that the county attorney had attempted to advise and thereby influence a subsequent witness as to certain facts that a previous witness had testified to. The two witnesses involved were employees of the store. As we understand the record the witnesses on the motion for new trial (with the exception of the Appellant) denied that such a conversation took place. Again, both the employees as well as the county attorney denied that the subsequent witness was "coached" in any manner. It is correct to state that the hearings on the motion for new trial contained a great number of searching questions posed by the attorney for the Appellant but the answers thereto were uniformly "no" or "no, sir" as to any improper coaching or leading or discussing the testimony of a prior witness with a subsequent witness. The trial judge had a right to weigh these questions and certainly weigh the answers thereto. The trial judge was in a superior position to observe the demeanor, the tenor, the facial expression, the body language and the general conduct of all of the witnesses testifying on the motion for new trial.
An assistant county attorney for Angelina County participated in these hearings. The hearings were very carefully and meticulously conducted. After carefully conducting the hearings involved, the trial court overruled and denied the motion for new trial. There was no error. This point of error is overruled.
Additionally, the trial court correctly decided, we perceive, (although it was the trial court's function and not ours) that the State had not violated the so-called "Rule". The "Rule" is the placing of the witnesses under the Rule whereby they are not to discuss their testimony one with the other. TEX.R.CRIM.EVID. 613. The witnesses can, however, discuss their testimony with the trial lawyers in the case. The county attorney repeatedly and emphatically denied that he had informed a subsequent witness of the testimony of a previous witness. The trial judge was well within his prerogative to weigh this evidence and to determine the merits of the motion for new trial upon the evidence of this witness and other witnesses that were presented before the bench. Indeed, the proceedings on the motion for new trial demonstrate that the Appellant himself was the only witness who actually stated that the county attorney had informed one Derry Scott, who was a witness for the prosecution in the trial on the merits, as to what, if anything, one Susie Selman, another witness in the trial on the merits, had testified to before the jury. With the exception of the Appellant, the other witnesses testified, directly and emphatically, that the county attorney had simply not informed Scott of the previously given testimony. It should be noted and it is important to reflect that the testimony of the Appellant himself was not abundantly clear as to his assertions and as to his verbal allegations. In fact, the Appellant's testimony was unclear and indecisive.
The third point of error in the Appellant's brief avers the trial court erred in failing to include the issue of value in the charge itself. It is perhaps interesting to note that the only testimony in the case is that the value of the items taken was in excess of $21. However, more importantly, we note that there were no objections or exceptions leveled at the charge of the court by the Appellant. We carefully note that the trial court questioned both trial counselors and each trial counselor announced that each had no further evidence. We find in the record:
....
This point of review, therefore, was waived. No request was made; no objection was made; no exception was taken by the Appellant. Any error therefore was waived and we find that no egregious harm to this Appellant resulted. No fundamental error is demonstrated. See and compare Manry v. State, 621 S.W.2d 619 (Tex.Crim.App.1981); Taylor v. State, 489 S.W.2d 890 (Tex.Crim.App.1973). See and compare Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984) (opinion on rehearing).
Furthermore, the Appellant places major reliance on Schwartz v. State, 53 Tex.Crim. 449, 111 S.W. 399 (1908). In Schwartz the property in litigation was shown to be a used safe. The safe was some seven years old or older. The record in our present case is very distinguishable and different from the fact situation in Schwartz. The property involved in the appeal at bar was brand new property for sale as new property at a well-known and well-established retail store with set prices. It is significant also to point out that the testimony of one of the witnesses, one Susie Selman, as to the total value of the properties taken was undisputed and uncontroverted. In response to one question, Selman unequivocally testified that the value was correctly $21.20.
As stated above, no fundamental error is shown under this record as to the evidence and testimony proving error. No harmful error is shown. The only testimony as to the value of the purloined items was that the value was $21.20. This value is undisputed.
Susie Selman testified that the total value of the merchandise recovered from the appellant was $21.20. The probativeness of this testimony was not diminished by cross examination. A second time this witness testified that the value of the merchandise involved was at least $20 but less than $200. This was the value of the merchandise taken by the appellant who, the record reflects, had intended to deprive the owner of the items. This witness was cross examined about a so-called "keystoning" method of pricing merchandise. Susie Selman did not know about the so-called "keystoning". She did not know whether Wal-Mart used this method or not. Such negative answers do not create a conflict in the evidence. The appellant proffered no evidence on said issue. The value issue was proved by the State.
The dissenting opinion stresses Morris v. State, 786 S.W.2d 451 (Tex.App.--Dallas 1990, pet. ref'd), this being a post-Almanza case. See Almanza, supra. The dissenting opinion's quotation from Morris is accurate as far as it goes. Morris' conviction was affirmed, Justice Stewart reasoning...
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Lara v. State, No. 13-04-282-CR (Tex. App. 2/8/2007), 13-04-282-CR.
...36.19 (Vernon 2006). A defendant waives any error in the charge when he does not object at trial. See Wilson v. State, 835 S.W.2d 278, 280-81 (Tex. App.-Beaumont 1992, pet. ref'd). If a party does not properly object, we look at the error in the submission of the charge to determine if it c......