*1 judgments which the building, there indictment on left the he had from which fully sup- against as- become final him is containing have zipper-type handbag was a ported stipulation. proper whiskey. sorted bottles judg- appearing, the No reversible error store, Joseph drug manager of isment affirmed. at notified Wheeler, he was that testified drug 15th, February A.M., 3:00 went He burglarized. store there drug store window a broken Inside with store, a brick on he found drug window. floor, apparently to break used whiskey, half-pint bottles of given
He was store shelves which BONNER, Appellant, P.M. the Fay 11:00 he closed at William testified before, zipper bag. liquor cigarettes and that some The STATE of missing, bag were not found No. 36374. recover- never worth was and about $120.00 testified manager further The store ed. Court of Criminal anyone else appellant or given he had not Jan. 1964. after he the store permission to enter night before. P.M. it at 11:00 closed Rehearing 12, 1964. Denied Feb. testimony. no adduced Motion for Denied Second March exception. no formal bills There are special charges requests for no There were exceptions charge to no has not favored
jury. Appellant’s counsel
us with brief. exception ap
Five informal bills facts reflect in the statement of
pearing objec appellant made numerous testimony and
tions to the introduction reason that the magistrate immedi not taken before a and, consequently,
ately his after arrest
deprived rights. we constitutional find that the record shows
do not magistrate
was not taken before arrest, assuming that he was Beeland 149 Tex. shown. 687; Campbell
Cr.App.
State, Tex.Cr.App., 358 sup
The evidence is sufficient to jury's
port verdict find burglary, and the previously convicted
ing that capital forth set
of two *2 Austin, Atty.,
Douglas, State’s for State.
DICE, Commissioner. pun- burglary; conviction is for ishment, enhanced under Art. Ann.P.C., by prior four convic- reason of for im- tions felonies less than life prisonment. state’s evidence shows the state’s in a Edgar Hall his wife lived Mendez, city Hous-
house at 8211
night
question,
On the
while Hall
ton.
home, neigh-
away
and his wife were
lights
bor,
Monzingo,
come
Marvin
saw
on in the Hall
and observed the
residence
appellant moving
in the kitchen.
around
Monzingo proceeded
the street to
across
and,
neighbor’s
talking to the
neighbor,
premises.
the two went
the Hall
they approached
As
side of the house
they
observed a screen off of window
open. They
shine
proceeded
(cid:127)a-flashlight through
into a bed-
the .window
appellant sitting
room and
on
observed the
legs.
a bed with a mixmaster between his
they
doing,
When
asked him what he was
replied,
They
“Nothing.”
then
left
police
they
were called.
were
waiting
come,
police
appel-
both
go
lant and his wife
from the
were seen
Hall residence toward their house next door.
time, appellant’s
carrying
At such
wife was
Thereafter,
a bundle.
arrived
placed appellant
under arrest.
It was
shown
he did
not have
consent
break
Hall to
house and
enter the
the windows and doors
the house
locked Hall and
when
left
premises prior
question.
It
shown that
re-
Halls
turned home
days
later
found
a mixmaster
pot
coffee
the floor in
bedroom,
later,
and,
two of their bed-
spreads were
seen in a bedroom of
Divine, Houston,
C.
C.
lant’s home:
Briscoe,
Frank
Atty.,
Dist.
Carl E. F.
Dally,
Miles,
Brough
prior
C.
D.
Proof
made of
four
Gene'
James
¡.convictions
Attys., Houston,
Asst. Dist.
-Leon B.
the introduction in evidence
and.
finally
duly
certain
authenticated records of the
he had been
capital.
System
comparison of
Texas Prison
four
approved by
the manner
complains
that, under
court
in Roberts v.
permitted
court’s
were not
*3
537, 301
S.W.2d
guilty only
primary
to find him
the
of-
of
behalf,
Testifying
punishment
as a witness in his own
fense
assess
at confine-
appellant
penitentiary
years
ment
entering
admitted
the
the
in the
a
of
house on
term
gave
explanation
of not less
in
but
as an
than two nor more than twelve.
gone
that his wife had
into the house and
charge,
jury,
Under the court’s
before
brought to their residence a bundle of chat-
convicting appellant,
required
find
to
tels, including
pot,
a mixer and coffee
only
primary
not
guilty
that he was
of the
gone
that he had
to the Hall house and
previously
offense but that he had been
through
open
entered
window to return
alleged felony
convicted of the four
offenses.
Appellant
the articles.
swore that he had
jury
The
could
under the court’s in-
no intention
anything.
to steal
ad-
also
structions,
upon
have convicted
mitted
prior alleged
the four
convictions.
a finding
guilty
primary
that he was
previously
offense and that he had
not
jury by
The
rejected
their verdict
prior alleged
convicted of the four
offenses.
appellant’s testimony, and we find the evi
dence sufficient to sustain their verdict.
by
charge given
more
the court was
favorable to
than if it had author
court,
Under the decisions
of this
jury
only
ized the
guilty
to find him
of the
very
breaking
act of
entering
in
primary
Appellant
offense.
is
in
therefore
nighttime
presumption
raises a
that it is
complain.
State,
position
to
Punchard v.
State,
done with intent to steal. Sikes v.
531,
648; Handy
142
154
Tex.Cr.R.
S.W.2d
257,
166 Tex.Cr.R.
726 appellant’s sepa-
shows wife had been her Howell fense witness husband. State, rately indicted for and that she 861. A Tex.Cr.R. probation assessed wife while on would defendant’s years penitentiary, probated. position appellant’s wife be case, supra. the provisions of Art. in the Howell Ann.C.C.P., incompetent an she was rehearing is overruled. The motion for Freyre on behalf of Opinion approved the Court. remaining s to the court’s refusal to declare mistrial *4 prosecution, when the on cross-examination “ * * * if in asked ryas convicted,”
you upon objection withdrawn counsel by appellant. made and not answered record, refusal Joseph TETRAULT, Appellant, A. present grant a reversible mistrial does not error. STATE support
Finding the evidence sufficient to ap- No. 36340. conviction and reversible pearing, judgment is af&rmed. Court Criminal
Opinion approved by the Court. Feb. Denied March
ON APPELLANT’S MOTION REHEARING FOR Judge.
BELCHER,
Appellant re-urges admit the refusing
trial court erred
testimony who of his wife pri- principal in the commission of
mary for which offense that she the ground
herein convicted on by him a defense wit-
could not be called
ness. appellant and shows that evidence
wife were indicted ap- but before date On case,
pellant’s began in trial this
was convicted for years and she was
was assessed at three
placed probation. similar where considering
In facts suspended sentence
wife was under a prosecution held until the
Court as a de- could not be called
dismissed she