Xanthull v. State, 39577

• Citation: 403 S.W.2d 807
• Decision Date: 25 May 1966
• Docket Number: No. 39577,39577
• Parties: Theodore R. XANTHULL, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 807

403 S.W.2d 807

Theodore R. XANTHULL, Appellant, v. The STATE of Texas, Appellee.

No. 39577.

Court of Criminal Appeals of Texas.

May 25, 1966.

Rehearing Denied June 25, 1966.

Crouch & Ferguson, by Paul F. Ferguson, J. David Gooch, Alvin, for appellant.

Tom Kenyon, Dist. Atty., Wallace N. Shaw and Ogden Bass, Asst. Dist. Attys., Angelton, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Commissioner.

The offense is burglary; the punishment, six years.

The indictment charged the burglary of a house occupied and controlled by G. M. Shepard.

Shepard, the prosecuting witness, testified that he was yard manager for the Griesenbeck Lumber Company in the city of Angelton. On Saturday, September 25, 1965, the witness closed the business at noon for the week-end. All windows and doors to the building were locked. When he returned on Monday morning it ws discovered that, without the witness's consent, the building had been broken into and the place burglarized. One of the windows in the building was broken and a door was open. Inside the building the cash drawer had been prized open and tools were scattered over the floor. Among the tools was a hammer belonging to the company, which hammer was introduced in evidence as state's exhibit #1. $11.40 was missing from the cash drawer.

Deputy sheriff Andy DeSham testified that he went to the lumber company building on the morning of September 27 and, in his investigation, found the hammer (state's exhibit #1) behind a counter. The deputy testified that he was in charge of the identification section of the sheriff's office and that a part of his work was the classification of fingerprints. He related in detail his education, training, and experience in the field of fingerprints and stated that in the course of his investigation of the burglary he photographed a palm print on the hammer. He stated that he had made a comparison of the print with a palm print of the appellant, and expressed his opinion that the print on the hammer was the palm print of appellant.

On September 27, 1965, appellant made and signed a written statement to deputy sheriff A. J. Schamerhorn, in which statement appellant admitted having committed the burglary by breaking and entering the building on the night of September 26, 1965.

The confession was admitted in evidence by the court as state's exhibit #3 after testimony was presented, both in the absence of the jury and in the jury's presence, relative to its execution and voluntary nature.

At such hearings, deputy sheriff Schamerhorn testified that on September 27, 1965, appellant freely and voluntarily made the confession after having been by the witness duly warned. The officer testified that appellant first made the statement to him orally. The two then went to another office, where appellant dictated the statement to a secretary who typed it. While the statement was being dictated by appellant and transcribed by the secretary, deputy Schamerhorn was in and out of the office. After the statement had been transcribed, appellant signed it. Later, the statement (state's exhibit #3) was typed on another form and signed by appellant.

The court, in his findings of fact duly entered of record, certified that appellant freely and voluntarily made the confession to officer Schamerhorn after having been duly warned.

Appellant did not testify before the court or the jury upon any issue in the case.

Appellant predicates his appeal upon seven formal bills of exception.

We first overrule bill #1, which complains of the court's refusal to instruct a verdict of not guilty. The evidence is sufficient to support the jury's verdict finding appellant guilty of the offense charged.

By bill #2, appellant insists that reversible error was committed when he was brought into court in jail clothing. In support of his contention appellant relies upon certain decisions by this court in cases where the accused was brought into court in handcuffs.

In these cases, such practice has been condemned but held to be within the sound discretion of the trial court, subject to the closest scrutiny and review by this court. Mouton v. State, 155 Tex.Cr.R. 450, 235 S.W.2d 645.

The bill of exception certifies that 'before any proceedings were had, and before the Court's charge was read to the jury,' appellant was brought into court in coveralls, issued to county prisoners with lettering on the back identifying the garments as county jail issue, and that 'before said proceedings were initiated' in the cause his counsel 'approached the bench' and objected to the manner in which appellant was clothed. While the bill certifies the reasons assigned by appellant as a basis for his objection and that the objection was overruled, it does not certify to facts sufficient to show injury or prejudice to appellant. No error is presented by the bill....