Wood v. State

• Decision Date: 06 November 1974
• Docket Number: No. 48510,48510
• Citation: 515 S.W.2d 300
• Parties: Mark Allen WOOD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 300

515 S.W.2d 300

Mark Allen WOOD, Appellant, v. The STATE of Texas, Appellee.

No. 48510.

Court of Criminal Appeals of Texas.

Nov. 6, 1974.

Rehearing Denied Nov. 27, 1974.

Robert B. Maloney and David L. Loving, III, Dallas, for appellant.

Henry Wade, Dist. Atty. and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for murder with malice, wherein the jury assessed the punishment at life imprisonment.

Initially, appellant contends the trial court erred in arraigning him in the presence of the jury over timely objection.

In Minafee v. State, 482 S.W.2d 273 (Tex.Cr.App.1972), this court said:

'The practice of delaying arraignment and conducting such proceedings in the jury's presence should not be condoned. Trial judges should be careful to avoid such practice.' See also Boykin v. State, 487 S.W.2d 128 (Tex.Cr.App.1972); Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974).

This court, however, has refused to reverse where there has been no showing that the arraignment was actually conducted in the presence of the jury, Thompson v. State, 447 S.W.2d 920 (Tex.Cr.App.1969), or where there was no objection made to such improper procedure, Stewart v. State, 473 S.W.2d 495 (Tex.Cr.App.1971); Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973); Willis v. State, 493 S.W.2d 170 (Tex.Cr.App.1973); Winkle v. S.W.2d 170 (Tex.Cr.App.1973); Winkle v. State, supra. And on occasion we have found no reversible error when the totality of the circumstances was considered including the court's instructions at the guilt stage of the trial that the indictment was no evidence of guilt. Minafee v. State, supra. Cf. also Gonzales v. State, 500 S.W.2d 154 (Tex.Cr.App.1973).

Just why, however, some trial judges persist in this condemned practice is difficult to understand. Arraignment is not a part of trial by jury, Boening v. State, 422 S.W.2d 469, 473 (Tex.Cr.App.1967), and is one of the proceedings that can be disposed of by a pre-trial hearing. See Article 28.01, Vernon's Ann.C.C.P. The purpose of arraignment is to read the indictment to the accused, hear his plea thereto and fix his identity, Article 26.02, Vernon's Ann.C.C.P., and it usually is the point in the criminal proceedings at which the trial court determines if the accused has counsel and if appointment of counsel is necessary. Therefore, unless arraignment is waived, most careful trial judges make every effort to see that arraignment occurs as early in the proceedings as possible.

The very purpose of arraignment has already been served in most instances when arraignment is delayed until after both sides have announced ready at the trial on the merits and a jury has been selected and sworn. When arraignment is so delayed, it is usually an oversight or an omission and then is performed merely because the statute (Article 26.01, Vernon's Ann.C.C.P.) requires the same. This is no justification for conducting the arraignment in the presence of the jury. Further, any inadvertent remark or innocent inquiry, etc., in the jury's hearing might easily become the basis for a mistrial.

In the instant case appellant contends the arraignment (Article 26.01, supra) and the second reading of the indictment before the jury to satisfy the requirements of Article 36.01, Vernon's Ann.C.C.P., repetitiously chips at the presumption of innocence. He contends that no 'form' jury instruction to the effect that the indictment is no evidence of guilt can remove the psychological effect of the repetition upon the jury.

Appellant charges that this court will apparently tolerate any extreme in the manner in which arraignment is conducted so that the matter will continue to be only within the whim of each individual trial judge. This we readily disclaim, for there may be many instances where the manner of the arraignment in the jury's presence may prejudice the rights of the accused.

In the instant case while the indictment was read twice in the presence of the jury, the plea entered each time was 'not guilty,' and the record does not reflect that any extended remarks, etc., were made that might have prejudiced the appellant, particularly in light of the court's subsequent instruction to the jury that the indictment was no evidence of guilt. Considering the totality of the circumstances, no reversible error is shown.

The practice of arraignment in the jury's presence is, however, again condemned and should not be permitted regardless of the plea. ¹

Appellant also challenges the sufficiency of the evidence to sustain his conviction.

The record reflects that near midnight on April 3, 1972, Officer John Palich of the Mesquite Police Department, while on patrol alone, heard a radio dispatch concerning an 'attempted burglary' in the area and the flight from the scene by three white males. He later learned that one of the three had been apprehended. He participated in the search of the area for those who had escaped. At the time he did not know whether any items had been stolen. Several hours later, about 3 a.m. on April 4, 1972, Officer Palich, still alone, observed a 1963 Ford Fairlane automobile run a stop sign at the intersection of Hyde Park and Interstate 30 in Dallas County, eight-tenths of a mile from the scene of the attempted burglary. He stopped the vehicle for the traffic violation and discovered the same was occupied by two white males and was being operated by Russell Glen Tores, who produced his operator's license.

The appellant Wood was a passenger sitting in the front seat. During the course of the conversation with Tores, the officer observed by the light of his flashlight that the appellant appeared to be having difficulty keeping his eyes open ² and he formed the opinion that the appellant was under the influence of alcohol or drugs. The appellant was unable to produce any identification at the officer's request, although Tores quickly and voluntarily interjected that the appellant had lost his operator's license the preceding day. The officer requested the appellant to get out of the vehicle, which he did, and he walked to a position near the front of the police vehicle. He was unkempt had on an Army jacket-type blouse which extended below his waist and still appeared to be intoxicated on alcohol or drugs. Officer Palich observed that the appellant was aware of his movements when he placed his hands on his service pistol, which he explained he did for his own safety as it 'is a very dangerous time when a person is alighting from the vehicle in any traffic situation at that time of night.' Further, the officer testified that appellant's Army type blouse hung down to his things so the officer could not observe his waistband to determine if appellant was armed and he searched the appellant for weapons for his own protection.

Officer Palich had the appellant place his hands on the police vehicle and patted him down, feeling in one pocket what seemed to be the handle of a knife. He removed the same from the lower left pocket of appellant's blouse and found it to be three rolls of coins and a number of loose bills totaling $108.00. He then radioed for assistance and began a search of the Ford automobile, finding a .45 caliber pistol under the driver's seat which appeared to have been fired recently, and found a .22 caliber revolver pistol in a well between the passenger seat and passenger door. As Officer Palich was searching the vehicle Officer Ron DeLord arrived, warned the arrested twosome of their rights, handcuffed them and placed them in Palich's police vehicle. Palich took them to jail.

DeLord remained with the Ford to await the arrival of a tow truck. As he waited he was approached by a white male in an automobile. As a result of a conversation with such motorist DeLord went to a Texaco service station located about 100 feet away and found the cash register standing open and a small metal card file box overturned on the desk. In one of the service bays he found the deceased, George Youngblood, in a semi-sitting position bleeding from wounds in the head. There was no pulse. An ambulance was called. DeLord knew the deceased service station attendant was alive and well 30 minutes before, for he had talked with the attendant at that time.

Subsequent investigation revealed Tores' fingerprints on the metal file box and two spent .45 caliber cartridge cases in the service bay. A .45 caliber bullet was removed from the deceased's head, and it was determined such bullet had been fired by the .45 caliber pistol recovered in the search of the Ford. The prints, shells and the bullet were received into evidence.

The autopsy revealed that death was caused by wounds to the head. One wound was inflicted by the said .45 caliber pistol and from the other smaller wound no bullet was recovered as it was a 'through and through' wound.

The service station owner's wife, who acted as bookkeeper, testified $108.17 was missing from the station, and she made positive identification of the two rolls of pennies taken from the appellant, for the rolls had some writing on them which appeared to be domino scores.

The appellant offered no testimony, and the court charged on the law of principals and circumstantial evidence.

We deem the evidence clearly sufficient to sustain the conviction.

In two grounds of error appellant complains of the admission into evidence of the $108.00 found on his person, as well as the admission of the .45 caliber pistol and .22 caliber revolver. He contends that all of these items were found as a result of an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution and Article I, Sec. 9 of the State Constitution, Vernon's Ann.St.

The record relating to the search and seizure was not developed as well as it might have been, which always increases the burden upon the appellate court in...