Wockenfuss v. State, 49704

• Decision Date: 16 April 1975
• Docket Number: No. 49704,49704
• Citation: 521 S.W.2d 630
• Parties: George WOCKENFUSS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 630

521 S.W.2d 630

George WOCKENFUSS, Appellant, v. The STATE of Texas, Appellee.

No. 49704.

Court of Criminal Appeals of Texas.

April 16, 1975.

Jim Hamilton, Houston, for appellant.

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

OPINION

MORRISON, Justice.

The offense is burglary to commit theft; the punishment, seven years.

In ground of error one appellant claims a violation of his constitutional right against double jeopardy. The basis of this complaint is that the indictment in this cause, No. 200,325, which charged appellant with burglary of a house occupied and controlled by one Gene Elkins was in fact a re-indictment of Cause No. 137,323, which alleged the injured party to be Carl Elkins. At the outset we note that this claim is made for the first time on appeal and that no written and sworn special pleading was filed with the trial court as required by Arts. 27.05 and 27.06, Vernon's Ann.C.C.P.

The first indictment was returned on December 19, 1968. After several continuances, the trial was set for April 17, 1970. On that date appellant jumped bail without having been tried. The next notation in the court's docket sheet is dated July 19, 1973, and it originally stated that the case was set for 'sentencing' and further announcements on July 24, 1973. On September 6, 1973, appellant was re-indicted for the same offense in Cause No. 200,325. On October 4, the original indictment, No. 137,323, was dismissed.

The appellant's central argument in this ground is based on the docket entry dated July 19, 1973. He claims that since the court set the case for Sentencing and announcements, the only logical inference is that some sort of plea and conviction must have been entered, and therefore jeopardy would have attached.

The record clearly indicates that appellant jumped bond before any trial in this case was held. The burden is on the accused to prove an affirmative defense of prior jeopardy. Galloway v. State, Tex.Cr.App., 420 S.W.2d 721. There is nothing to indicate that the entry made (and later deleted) by the judge on July 19, 1973, was any more than clerical error.

The ground is overruled.

In his second ground of error, appellant contends that the court erred in admitting evidence as to the bond jumping in the instant case over his objection that it was irrelevant and prejudicial.

The record reflects that the State introduced evidence showing that appellant did not appear when This case was called on April 17, 1970. Outside the presence of the jury, appellant cross-examined a witness who had been the prosecutor at the time in question. He elicited information to the effect that at the time of the bond forfeiture in the present case five other bonds were simultaneously forfeited and an appeal bond on a prior rape conviction had been forfeited a month before.

Following this testimony on voir dire, the court admitted in the presence of the jury the evidence as to flight.

This Court in Hodge v. State, Tex.Cr.App., 506 S.W.2d 870, 873, said:

'(T)o support admission of evidence of escape from custody and flight, it must appear that the escape and flight has some legal relevance to the offense under prosecution. . . . In order to have such evidence excluded, the burden then shifts to the defendant to show affirmatively that the escape and flight is directly connected to some other transaction and further show that it is not connected with the offense on trial.'

In Damron v. State, 58 Tex.Cr.R. 255, 125 S.W. 396, the defendant showed by bill...