*1 Rеgalado In contended him store with it was that “A. I did see leave the hanging prove the merchandise from the that the State failed to the of coat, his yes.” back of which the basis for fense formed revocation alleged County in El as occurred Paso appellant’s testimony While is in conflict case, In that unlike the case motion. before Teno, it remembered with that of must be us, objection defendant raised at the trial court as the facts in judge that the of hearing. of the In the conclusion instant con- proceeding revocation can resolve case, Regalado, as in no claim was advanced testimony flicts in or adversely hearing appeal at the or that the offense any other witness. outside place took the United States. The hypothe- completely It is a unreasonable hearing herein is to have been held shown sis who person that a had the consent Abilene, in Tay in the 104th District Court would hide owner of a store take a dress testimony Texas re County, lor and the is removing it from the under his coat after it addresses, plete with references such store with it depart rack and from the Cedar,” First,” on North “1342 “K-Mart completely almost concealed under 9th,” indicating of “5034 North clothing. We find evidence ex- testimony in The fense occurred Abilene. except every hypothesis cludes reasonable of of the witness Teno established value guilt conclude that that of “Taylor County, Texas” further the dress in finding. supports the evidence the court’s in indicating Tay occurred the offense in error Appellant contends the court was Regalado very where County. lor Unlike testify in permitting the witness Teno to held to similar circumstances were show objection “that did not have over Paso, El the offense in occurred Armstrong ap- of H. permission A. is in instant case not in city involved being propriate property, such evidence neighboring proximity to a nation. close hearsay.” no abuse in the trial We find of discretion Assuming arguendo, complained in revoking probation. court’s action *4 Schaffer, Jr., Houston,
Randolph for L. appellant. Kendal], Jourdanton, Atty., F.
Alger Dist. Hebbronville, Cerda, L. Atty., John A. Dist. Carruth, Gen., Hill, P. Atty. Gerald C. Max Greene, Flusche, Asst. Catherine E. Jr. and Huttash, Gen., Atty., Attys. Robert State’s Austin, for the State. ROBERTS, and DAL- PHILLIPS
Before LY, JJ.
OPINION
DALLY, Judge. appeal
This is a conviction from *5 penal code. felony former theft under the for seven punishment imprisonment The years, probated.
Appellant (1) the evidence contends accomplice to an is insufficient corroborate witness, guilt as a appellant’s to establish ownership of the principal, prove to and the indict- property alleged stolen ment; (2) of appellant’s cross-examination mo- State their bias and witnesses show improp- against him was testifying tive for restricted; gave (3) trial court erly the charge the conflicting on and irreconcilable give an рrincipals law of and refused the charge the converse of affirmative on permitted (4) charge principals; law of the support in without theory a conviction on a evidence; (5) refused to trial court the the give on two defen- affirmative instructions instruct the sive theories and to accomplice wit- two witnesses were State law; (6) improper nesses as a matter (7) objection; over evidence was admitted weight on the trial commented court evidence; engaged in (8) prosecutor (9) argument; the trial court improper jury timely make permit appellant refused to (10) evidence benefi- exception; his bills of appel- stolen from cial defense State; by agents Couling lant’s office and testified that he instructed the (11) appellant’s quash type employees motion to the indict- tax office addresses on rolls, envelopes process the tax ment should have from granted. been approximately took three weeks. alleges indictment that on or about addressed, envelopes were Coul- After 4,May Bridges, Grace another BISD em- and “unlawfully fraudulently and two [took] ployee, through postage ran them me- (2501) five Postage thousand hundred one Couling ter. testified that came stamps meter numbered 561541 of the while to the tax office several times value of over two hundred dollars envelopes being processed to sеe were how ($200.00), being the same and then there going, were but that things the corporeal personal property present envelopes when the were not been Bercaw, belonging pos- to Ken from the through postage run meter. Bercaw, session of the said Ken without postage Couling did not reimburse Bercaw, consent the said Ken envelopes. used to mail the deprive with the intent then and there to employees tax office testi- Several BISD Ken said Bercaw of the value they fied had addressed same to appropriate it to the use and them campaign envelopes stuffed himself, benefit of the said Oscar Carrillo Ross, pamphlets on school time. Gordon superintendent of the at the time BISD At question, appellant the time in was a question, testified that he saw work member of the Representa- Texas House of Gonzalez, done. the Bena- being Mauricio tives, and was a candidate for the Texas postmaster, testified that thousands vides Senate from the 21st senatorial district. envelopes bearing appellant’s photograph The postage meter described in the indict- stamped by which had been BISD belonged ment Indepen- the Benavides May, postage meter were mailed in 1972. dent (BISD). School District It was the place none While of the witnesses could State’s appellant arranged contention that figure envelopеs exact number of to have some of his materials processed through which were the BISD tax *6 expense mailed at the hav- BISD office, 5,000 the were between estimates ing it through run the post- school district’s 10,000. letter, eight per and At cents which age meter. class the record reflects was the first rate in 1972, the cost to the was between BISD postage The meter was located in what and testified that the $400 $800. Gonzalez was referred to at the as the trial tax BISD post- record book maintained for the BISD office in Benavides. Couling Rodolfo evidence, meter, age was in showed which assessor-collector, the BISD tax and was in used postage during that of had been $800 charge of the tax Couling office. testified May, week Elizondo the first of 1972. Luis 1972, April, that in appellant came to the Jr., Bercaw, and M. K. both members of the tax office told and him that he wanted the in board of trustees testified BISD tax to postage appellant’s office furnish to the that the board never authorized use of campaign. agreed After Couling provide to appellant’s postage the school’s meter for assistance, the requested appellant brought campaign. in envelopes pamph- several boxes of and Couling lets. that in- testified jury the trial court instructed envelopes, structed him to stuff address the Couling accomplice witness as a that was an pamphlets, them with the and them run of law. conviction be had matter A cannot through postage the two meter. One or accomplice of an unless upon testimony days later, campaign appellant’s more of by other evi testimony that is corroborated office, to literature was delivered the tax tending connect the defendant dence to committed, but could Couling not remember who made the corrob offense delivery. merely is if shows oration not sufficient it 882 38.14, a is Where there a doubt whether witness
the commission of the offense. Art. ample accomplice, submitting While there is evidence an the issue V.A.C.C.P. Couling’s though in record testi jury to corroborate is sufficient even evidence mony campaign material in of appellant’s preponderate that favor the con seems to addressed, stamped, and mailed accomplice the witness is an as clusion that employees expense, only State, at BISD two BISD Colunga a of v. 527 matter law. gave testimony connecting other witnesses (Tex.Cr.App.1975); v. 285 Ward S.W.2d Appellant argues State, the theft. (Tex.Cr.App.1975); 395 520 S.W.2d that of these witnesses State, (Tex.Cr. 167 Jackson v. 516 S.W.2d not in be considered corroboration Coul- deliv App.1974). Chapa admitted that he ing accomplice because both were witnesses envelopes Couling that he saw ered State, Caraway as a matter of v. law. See envelopes through Bridges run Couling and Chap (Tex.Cr.App.1977); S.W.2d Couling postage meter. the school district’s State, (Tex.Cr.App. man v. denied, testified, Chapa de Chapa but 1971). envelopes to campaign livered some is no evidence post office. But there The first of these witnesses was Ruben postage meter Chapa knew that Chapa, who testified that he had been em- consent of the being used without the ployed by appellant in his Laredo work the district was school board Chapa office. testified postage. be reimbursed for going to gave late a box April, him did not err We the trial court hold addressed, envelopes been Chapa was submitting the of whether issue stuffed, sealed, take and told him to question for fact accomplice witness Couling, them to would “know what who compare Ward v. jury. See and en- Chapa do with them.” delivered 502 S.W.2d supra; Zitterich v. office, velopes Couling at the BISD tax State, 461 Allen v. (Tex.Cr.App.1973); envelopes him later watched run (Tex.Cr.App.1970). Chapa S.W.2d 622 through postage also tes- meter. tified that on another occasion saw Coul- not instruct The trial court did campaign envelopes run Bridges accomplice witness Taylor was an postage meter. through law, submit nor did the court as matter Taylor, Brian The second witness was accom question as a fact. An the issue superintendent who the San in 1972 was partici has is someone who plice witness Diego (SDISD). Independent District Schоol before, during or after pated with another April ap- year He of that testified that v. Ferguson of a crime. the commission if he would mail some of pellant asked him 573 S.W.2d campaign literature. (Tex.Cr. Jackson ap- during testified that this conversation Singletary App.1977); *7 provid- was pellant told him that the BISD is an ac One not (Tex.Cr.App.1974). 572 campaign. ing similar assistance prosecuted cannot be complice witness who material, Taylor agreed appellant’s to mail is the accused which for the offense with 2,500 en- and approximately State, 51 576 S.W.2d charged. v. Villarreal velopes delivered to him subsequently were State, 536 Easter v. (Tex.Cr.App.1978); at office. hired several SDISD Taylor v. Morgan (Tex.Cr.App.1976); 223 S.W.2d envelopes, these students address 187, 116 State, S.W.2d 346 171 Tex.Cr.R. cam- were with then stuffed 135, State, 161 Tex.Cr.R. (1961); v. Silba stamps paign pamphlets and with mailed State, (1954); Liegois v. 73 108 275 S.W.2d was purchased by the SDISD SDISD. (1914). A wit 382 164 S.W. stamps. not for these reimbursed accomplice witness an ness is not deemed but failed of the crime the issue because he knew The trial court submitted v. it. Easter of or even concealed accomplice was disclose Chapa of whether State, State, v. supra; to decide. Gausman question of for the fact 883 However, 458 (Tex.Cr.App.1972). While material to the tax the record in office. it is may support the instant case necessary accomplice the conclusion witness Taylor knеw of the theft testimony. from the be corroborated on all his Ed BISD, State, there is no part (Tex.Cr. evidence that he took wards 4217 629 App. v. S.W.2d planning State, 1968); commission of this of White v. 84 fense. Taylor admitted that post Chapa he stole S.W.2d 465 testified that age stamps from the SDISD for use in appellant ordered him to deliver a box of appellant’s campaign, but a witness’ com envelopes Couling, and told him that plicity with the accused in the commission Couling would what to do with them. know of another offense does not make his testi Chapa envelopes, After delivered Coul- mony that of an accomplice to the offense through postage ran them meter. for which the is Caraway accused on trial. Taylor appellant testified that told him that State, supra; State, v. Easter v. supra. No providing postage to mail BISD error presented. material, is. appellant’s campaign and asked him if he would do the same. We hold that Chapa Taylor were not accom testimony Chapa is suffi plice law, witnesses as a matter of and their Couling regard cient to corroborate testimony may be considered in corrobora charged appellant’s involvement of tion of accomplice Couling. witness To testimony, Their fense. and that test the sufficiency of the corroboration of witnesses, incriminating, other is State witness, an accomplice one must eliminate tends to connect to the commis from consideration the evidence of the ac offense, Couling’s sion of the makes complice witness, and then examine the evi likely more than not. dence of the other witnesses to ascertain if it incriminating is of character which tends contends that the evidence to connect the defendant with support the commis his conviction as a insufficient sion of the offense. If there is such evi principal argues to the theft. He dence, sufficient; the corroboration is oth while the evidence show that he ad- erwise, State, it is not. Brown v. Couling encouraged vised or to commit the theft, S.W.2d 484 (Tex.Cr.App.1978); Caraway v. there is no evidence that State, supra; State, Etheredge present acting was either in furtherance S.W.2d 148 Reynolds envelopes v. of the at the time offense State, Thus, (Tex.Cr.App.1972). through S.W.2d 866 postage were run meter. is, The corroborative testimony need not di at asserts that the evidence rectly most, link the accused only to the crime or be sufficient to convict him as an sufficient in itself guilt. Ly accomplice to establish to the theft. State, man v. 711 (Tex.Cr.App. forth in principals Under the law of set 1976); Bentley v. 65-69, (1925), Arts. in effect when V.A.P.C.
(Tex.Cr.App.1975); Black v.
committed,
charged
if the
offense was
S.W.2d 569 (Tex.Cr.App.1974); Cherb v.
when
present
defendant on trial was not
State, 472
(Tex.Cr.App.1971).
S.W.2d 273
doing
offense
committed and
The corroboration
only
nеed
make the ac
when
nothing
design
in aid
the common
complice’s testimony
likely
more
than not.
not,
committed,
the offense was
he would
(Tex.Cr.
James v.
Neither nor was may by offense of theft illustrated the be able Couling’s testimony to corroborate following example: appellant Couling had to told use the BISD postage property, meter to mail material A induces B to steal certain personally equipment and had delivered some of this B with arms or need- supplies 884 by Ramey
ed
the
the
B
for
task. At
time
takes the
delivered
Goolsbee to
and the
property,
present
acting
isA neither
nor
We
the correct
others.
think
view that
in
by
furtherance of the theft. B delivers
the time of
crime of theft
the
false
A,
the property
receiving payment.
pretext
beginning
to
A
from
extended
the
of
keeps
disposes
property
appellant
of the
as he
the
when
first
transactions
vis-
sees fit.
ited
until
their loot
the Goolsbees
was
. .
It
from
divided
.
follows
the
facts,
Under these
A would be an accom
appellant
per-
facts of the case that
was
plice
goods,
or a receiver of stolen
but
anot
present
sonally
on several occasions
to
principal
the theft.
Rountree v.
See
.
. .” 160
at 946.
.
S.W.2d
State,
188,
140 Tex.Cr.R.
“Two views of the case. taken There appellant. to the use One would narrow the commission converted money essential to the commission very steps crime to minute the was were two *9 sufficiency of (1) challenge In his final delivery appellant’s of this theft: evidence, appellant contends campaign envelopes to the tax office and post- does not show that the stolen (2) passage evidence énvelopes through of the Bercaw, alleged by Ken age was owned postage possession meter. While the of the trial, witness in the indictment. At the a postage passed appellant from the BISD Bercaw, Jr., gave name as M. K. who his Couling envelopes through when ran the member of the testified that he was a BISD meter, this transfer could not have tak- in 1972 and that the board board of trustees place en had not brought the en- postage never authorized the use velopes to the tax office. campaign. Appellant appellant’s for meter reasoning applied by this Court is no evidence that M. K. argues that there Holt, Parnell, equally and McClelland is Bercaw, Jr., person as Ken is the same applicable in this case. As did the defend Bercaw. cases, appellant
ants in those did more than reflects that when the The record merely encourage party induce or another prosecuting attorney called the witness in to commit theft. actually carried he referred to him as question to the stand step accomplishment out an essential reflects The record also “Ken Bercaw.” of the criminal the en scheme. Without by defense counsel several references velopes, Couling could not have converted Appellant did not raise this “Ken Bercaw.” the postage appellant’s to the use of cam pleading and the variance between paign. The appel evidence establishes that court, suggest nor he proof in the trial does lant personally delivered most of the en preju his in his brief that he was misled to velopes to Couling. The evidence is suffi The trial court instructed the dice. appellant’s cient to sustain conviction as a they if had a reasonable doubt principal to the theft. care, control, Ken Bercaw had the actual jointly management, individually or There is other evidence which this others, property at the with of the stolen Chapa conviction be sustained. testi- alleged they were to fied time of the offense that on instruction deliv- that, guilty. We hold find not ered a box of envelopes addressed to Coul- circumstances, under the the variance be ing, envelopes through who ran the K. Bercaw” tween “Kén Bercaw” and “M. Chapa’s presence. meter in Art. V.A. State, 449 is not material. Clark v. See (1925), provided P.C. that: (Tex.Cr.App.1969); Crye v. S.W.2d 231 “If anyone by employing a child or person punished other who cannot be 210, 96 Jones v. S.W. offense, by any commit an . v. (Tex.Cr.App.1906); McAfee indirect receive means cause another to “Jr.” is not Tex.App. 668 The suffix injury person property, to his the of- immaterial. part of a name and is fender the use of such means indirect Tex.Jur.2d, Names, (rev.ed.1976); 55 Sec. 10 principal.” becomes a Tex.Jur.2d, Theft, (1964). This Sec. 165 noted, As we have previously' there is no ground of error is overruled. evidence in the Chapa record before us that trial court Appellant contends that appel- aware of the felonious intent of erroneously restricted his cross-examination Couling. lant and In the .absence of such regard to Chapa, Ross and knowledge, Chapa punished for could interest, bias, testify- their and motive having envelopes Couling. delivered the discussing ing against Before him. legal sense, In present contention, a review merits of through Chapa, when he acted an innocent is warranted. applicable law agent, envelopes Couling to deliver to be through run should be allowed postage Spivey meter. Great latitude See or mo 668 the accused to show a witness’ bias (1942) falsify testimony. Cloud and cases therein cited. tive to *10 886
State,
State,
he
Randle
565
927
(Tex.Cr.App.1978);
801
did.
v.
S.W.2d
567 S.W.2d
State,
State,
v.
v.
(Tex.Cr.App.
(Tex.Cr.App.1978);
Blair
608(b), Rules Evidence. Federal con- of Ross impeachment The disallowed alleged property owned unadjudicated criminal his misuse general,
In cerned excep- impeach appellant’s bill of offenses not be the BISD. On used was the 38.29, tion, while he witness Art. V.A. Ross testified that in a criminal case. However, superintendent permit- he pending the BISD had C.C.P. evidence daughter un ted to use school-owned charges against a witness is admissible his transportation personal for the for her der certain circumstances limited automobile interest, college. showing bias, He also testified purpose prejudice, while at his from although he had dismissed testifying been motive witness job as superintendent election, still had in for his support refusal of possession at the time of the (Sep- trial explained only but that he had meant that *11 tember, 1976) tractor, mower, a Jeep, and he would not vote appellant for in the fu- by automobile owned the school district. ture. Although he questioned had been by mem- jury Ross testified before the that he had bers of the Attorney General’s by office and job superintendent been fired from his as of Rangers Texas concerning his continued appellant spoke against after him BISD possession of property, school Ross stated meeting. at a school board He was also that he had not been indicted or informed jury cross-examined before the about his that he subject prosecution was in this car, daughter’s use of the school-owned regard. agreement stated that he had an with the impeachment Insofar as the Chapa of purchase district to the car. In answer to concerned, Ross is this distinguisha- case is questions counsel, by defense Ross denied ble from Simmons supra, in two jury any before the knowledge that he had respects. First, charges no criminal had investigatеd by been Rangers Texas against been filed Chapa Second, and Ross. concerning superintend- his activities while appellant permitted was fully explore in ent at the BISD. his bills exception of possibility that no summary, appellant In was allowed charges had been brought against the wit- explore jury before the possibility quid nesses as a pro quo for their testimony. Chapa and Ross fruitless; testifying were exploration This was there is no against him in get revenge. Ap order to evidence in the record of any agreement pellant was question between the also allowed to Ross to State and Chapa either essence, alleged Ross. In a limited extent about his appellant misappro asking priation trial permit light court of school property. him to In of this impeach Chapa testimony Ross on the before speculation jury, basis of and in the ab as to pressure the any linking two sence of evidence might alleged witnesses have felt to testify favorably wrongdoings Chapa to the and Ross to their State. appearance against as appellant, witnesses Speculation about a witness’ ulteri- the trial court did not abuse its discretion in or motives testifying for against the de excluding proffered impeachment testi fendant is of little probative value as mony. impeachment. Furthermore, specula such tion invites The witness, impeachment harassment of the disallowed Taylor can delays lead to of the trial as the concerned theft from the Taylor motives of SDISD. each witness explored are by parties, testified on bill exception and can confuse the issues jury. employed superintend- and the while he was as ent of the approxi- SDISD he had stolen The exclusion proffered $8,000 $10,000 mately from the district. must also be considered light He also testified that he had not been in- impeachment Chapa and Ross which was theft, dicted for this and understood that he permitted by the trial court. During his part would not be indicted agree- of an cross-examination before jury, Chapa ment he had with the State. testified that he felt responsi- friend, ble for Couling, sister, his and his testified before the that he Sanchez, Maria being jobs fired previously pled from their guilty to income tax with the Chapa BISD. also testified that evasion and had been incarcerated for that appellant had refused request help offense in a federal penitentiary. He fur- when Chapa ran for city November, 1975, the Benavides ther testified that in after council, candidate, and that another who prison, his release from he tried on a appellant’s endorsement, received had won alleging State indictment theft from the the election. Chapa admitted had BISD. This trial ended in a mistrial. At told appellant that pay he would him back point, Taylor sought subsequently not, may legally prosecuted agreement into a written with the and con-
entered such, if agreement provided This provided State. victed as the evidence ad- testify concerning his knowl- Taylor would clearly and satisfacto- against duced each edge of the criminal activities guilt of each. When rily establishes the others, plea guilty and would enter a committed one actually an offense is indictment, theft would the State and, present know- but another is person probation. agreement recommend fur- intent, by acts or unlawful aids the. would not be provided ther actually encourages by those en- words any indicted for offenses committed him gaged in the commission of the unlawful might during appellant’s to which he testify act, person aiding encouraging so such *12 trial or the trials of other individuals. the as principal may prosecuted and be is a Further,
Taylor’s agree- criminal and his is actual- record an offense such. when the ment with the State were known to by person one but another ly committed jury. impeaching The effect of additional agrees the commission of advises or the excluded would have been when the of- present the offense and is slight, best. did not at The trial court committed, so person advis- fense is such excluding discretion the testi- abuse its in may agreeing principal and ing and is a mony. Further, per- all prosecuted as be such. aid, arms, engage procuring sons who in
Taylor also bill of testified on in the any to assist or means kind that he exception had testified for State offense, Alaniz, while others Nago of an in the trial of but that commission act, acquitted. executing in that and all defendant case had been the unlawful are contends trial court Appellant of the who endeavor at the time persons excluding testimony. erred in this of the to secure commission offense the offenders safety or concealment of record does the nature The not reveal as prosecuted principals are Alaniz, against or if that case charges such. way in the instant case. any was related to argues testimony sug- actually that this been “When an offense has testify against gests a motive for by persons, one committed or more “addition- Taylor may him in that have felt determining who are true criterion pressure produce al for the be- State” together Did act principals parties is: Alaniz offense; cause of the result in the case. was in the commissionof the However, argument that the assumes intent pursuance in of a common act done of weak- acquittal of Alaniz the result was formed previously pursuance and in of a assumption Taylor’s testimony, in an ness of all united design in which the minds in the record. support which is without so, it is our law concurred? If then indi- nothing the record to There is also in provided the guilty, all are alike recom- agreement to cate that the State’s during actually committed offense case in theft probation Taylor’s mend existence and the execution cases in on the outcome of the conditioned all, whether design and intent common testify. The trial Taylor was to actually bodily point of fact all were in exclud- abuse court did not its discretion the offense ground when present on testimony. ing this actually or not. committed if there was the trial Appellant contends “You are instructed of all instruc intent charge design court’s contained erroneous such common no offense, charge offense, principals. tions on the law of or if the to commit more, reads follows: one or principals was committed any, if Defendant independently of the acting prin- are persons our law all “It is by the doing participation and without together so acting are cipals guilty who offense; intent design in the Defendant commission an in the it, is not then Defendant principals, jointly indicted or commit whether State, 41 Tex.Cr.R. pellant cites Criner v. guilty. At the time of the commission of (1899), Davis acting 53 S.W. parties the offense the must be (1909), and Sil 117 S.W. together, doing part each some 213, 159 S.W. vas v. purpose. you If execution common have a reasonable doubt as to such mat-
ters,
you
give
must
the Defendant
Ann.P.C.,
(2d ed.
2 Branch’s
Sec.
In
acquit
benefit of the doubt and
him.
cases,
including those cited
1956), mаny
or
presence
party
“The mere
of a
at
following rule:
cited for
appellant, are
does
near the commission of an offense
charge [given in the
“The
.
.
.
offense,
party
nor
not make him
re-
quoted paragraph] would be
second
knowledge
mere
that an offense is
will
felony case where
every
versible error
to be committed or has been com-
about
alibi,
an
theory was
the defensive
offense,
party
him
mitted make
inculpatory proof is circum-
where the
alarm,
give
nor will his mere failure to
proof of acts oc-
and consists of
stantial
party
his silence or inaction make him a
the commis-
curring
before or after
either
to the offense.”
both,
or where
of the offense
sion
defendant,
that the
any evidence
there is
applied the law to the
The court
then
all,
guilty only as
guilty
if
at
would be
following
facts of the case in the
manner:
*13
accessory or both.”
accomplice or as an
you
“Now if
from the evidence
believe
case,
de-
there was no alibi
In the instant
beyond a reasonable doubt that
in Duval
circumstantial,
fense,
was not
proof
the
Texas,
County,
day
on or
the 4th
of
about
appellant
that
was
there was no evidence
1972,
Defendant,
Carrillo,
May,
the
Oscar
accomplice
accessory.
or
guilty only as an
acting
together
alone or
with others as a
by appel-
Thus,
the cases cited
even under
principal, unlawfully
fraudulently
charge on
lant,
paragraph of the
the second
took two thousand five hundred one
not erroneous.
principals is
(2,501) postage
stamps
meter
numbered
561541 of the value of over two hundred
Moreover,
Tex.
in Middleton v.
86
($200.00),
dollars
the same then and there
307,
(1919),
1046
this Court
Cr.R.
217 S.W.
being
corporeal personal property
the
of
cited
most of
the cases
reviewed
possession
Ken Bercaw from the
of the Branch’s,
by appellant,
cited
including those
Bercaw,
of
said Ken
without the consent
held
they
to
extent
overruled them the
Ken
the said
Bercaw and with the intent
is incor
quoted paragraph
that the second
deprive
then and there to
the said Ken
state that
The
went on to
rect.
Court
of the
of the same and to
Bercaw
value
showed that
unquestioned proof
“if the
of
appropriate it to the use and benefit
any
under
principal
was a
the accused
Carrillo,
himself, the said
individu-
Oscar
defining principals,
phase of the statute
others, you will
ally
principal
or as a
be held reversible
charge should not
Defendant,
Carrillo, guilty
find the
Oscar
at 1053.
error.” 217 S.W.
charged
as
in the indictment.
in this case
evidence
unquestioned
The
a reasona-
you
beyond
“Unless
so find
principal
to
was a
showed that
doubt,
reasonable
you
ble
or if
have a
charge
Giving the
postage.
the theft of the
thereof,
acquit
the De-
you
doubt
will
error. See
was not reversible
question
fendant.”
413,
v.
74 Tex.Cr.R.
also Serrato
v.
(1914) and Johnson
S.W.
para
the second
Appellant contends that
(1947).
principals is incor
graph
charge
of the
on
party
a
the second
require
because it does
also contends
Appellant
rect
not
irre-
charge
principals
of the of
on
present
paragraph
not
at the commission
para-
third
with the
doing
concilably
some act in further
conflicts
fense must
State, supra, and
citing
graph,
at the time of its com
Criner
ance of the offense
party as a McAlister v.
to convict the
mission
order
cases, the trial
In those
ap
contention
S.W.
principal.
support
In
In the
jury
paragraph
court instructed the
third
of the charge
the defendant
on
principal
could
be convicted as
even if he
principals
court instructed
jury
the trial
was
present
not
when the offense
com-
was
if
design
there was no common
mitted,
acquit
but then instructed them to
offense, or if
intent to commit the
the of-
they
had a
defendant
if
reasonable
by person
persons
fense was committed
doubt
present.
the defendant was
acting independently of
and with-
There is
such conflict
no
in this case.
design,
in the criminal
participation
out his
guilty.
The
was
court also
The
paragraph
charge
second
on
parties
jury
instructed
that the
must
principals
jury
par-
instructs the
that if the
acting together
been
acting together pursuant
ties
have
execution
were
to a
design
design
to commit the
at the time
of-
they
common
offense
of the common
committed,
are guilty
principals
as
whether or not all
that if
jury
fense
were bodily present when the
offense
they
had a
doubt as to this
reasonable
were.
paragraph
committed. The third
acquit
paragraph
This
appellant.
charge
instructs
principals
jury
defense
presents appellant’s
affirmatively,
acquit appellant
they
if
have a reasonable
to include
unnecessary
and it
the de-
doubt
design”
as to either the “common
paragraph
charge.
fense in
any other
together”
It
“acting
element.
does not in-
charge
supra.
giv-
as
Serrato
acquit appellant
they
struct
if
rights
adequate
protect
en was
have a reasonable doubt
that he was
36.19,
appellant.
V.A.C.C.P.
Art.
present.
paragraph
While the third
not a
We also
the first sentence of
note that
model,
not conflict
it does
with the second
charge may be
requested
read
specially
paragraph.
a principal
to authorize a conviction
court
contends
the trial
presence
party’s
based on
mere
at the
erred by failing
give
an affirmative sub-
course,
This,
is not
law. 2
offense.
princi-
mission on the converse
law of
(2d
Ann.P.C.,
1956).
Branch’s
ed.
Sec.
*14
connection,
pals.
appellant contends
In this
refusing
in
Thе trial
did not err
to
court
refusing
give
that
in
the court erred
to
charge.
give
requested
the specially
specially requested charge:
following
charge
was
Appellant
that
contends
princi-
“To convict the defendant as a
because it
fundamentally
permit-
defective
pal,
from
must find
the evidence
you
theory
supported
a
not
ted a conviction on
beyond
doubt
a reasonable
that he
appellant re-
by
Specifically,
the evidence.
present at the time of the com-
actually
charge applying
to
portion
fers
or,
offense,
alleged
any,
mission of the
if
facts, quoted previously,
the law to the
if
the time of
commis-
present
not
at
jury
where the
authorized
to con-
court
offense, if
he
alleged
any,
sion of the
they
he
vict
if
believed
took
was,
alleged
the time the
offense was
at
“acting
together
alone or
postage while
committed, himself
en-
being
actively
Appellant cor-
principal.”
a
others as
gaged
alleged
in
furtherance of the
is
points
there
no evidence
rectly
out that
design
purpose and
at some oth-
common
alone in
commis-
acted
Thus,
you
er
if
from the
place.
find
charged
offense.
sion
evidence,
have a
doubt
you
or
reasonable
defendant,
Carril-
thereof that
Oscar
bring
error
did
this
Appellant
not
lo,
at the
the of-
present
was not
time
attention
the triаl
charge
committed,
was,
one
if
and was
fense
timely objection.
of a
court
means
not
a
doing some act
furtherance of
Thus,
distinguishable from
this
is
Sa
case
purpose
design
common
and
between
State,
(Tex.Cr.App.
vant v.
544 S.W.2d
another,
and
if there was such a
himself
1976),
relies. We hold
on which
design,
the al-
purpose and
at
time
n
not
of was
calculated
was,
complained
the error
leged
committed,
if it
offense
rights, and
injure
did
appellant’s
princi-
would
then the defendant
not be.
impartial trial. Art.
deny him fair and
pal
acquit
must
you
him.”
V.A.C.C.P.;
36.19,
State,
Couling was act-
Appellant testified that
Camilo v.
(Tex.Cr.App.1978).
S.W.2d 902
knowledge
his
or consent when
without
campaign envelopes
he ran
Appellant
in-
testified that he never
Appel-
through
postage
meter.
BISD
Couling
anyone
structed
else to use the
the trial court erroneous-
lant contends that
postage
campaign
meter to mail his
BISD
material,
refused,
charge on
objection,
and that
over his
ly
he never took or sent
campaign material
to the tax office.
In
knowledge.
theory of lack of
the defensive
fact, appellant
testified that he did not
quoted the trial
previously
We have
employees
learn that tax office
had worked
principals. In
charge
court’s
on the law of
campaign
for his
until 1976.
ac-
it,
they
if
jury
was instructed
knowledged
Chapa
employed
had been
or had a reasonable doubt that there
found
worker,
as a
and stated that
design
intent to com
was no common
payments
had made several cash
to him for
offense,
mit
if the offense was com
expenses. Appellant
paid
testified that he
persons “acting independently of
mitted
Chapa
pur-
to reimburse him for the
$200
par
doing
the Defendant in so
and without
postage,
chase of
and offered in evidence a
ticipation by
design
the Defendant in the
22, 1972,
May
check for that amount dated
it,” they were to
and intent
to commit
payable Chapa
signed by appellant’s
acquit appellant. We hold that
instruc
wife. The check carries the notation “cam-
protected appellant’s rights
adequately
tion
paign helper.”
theory
insofar as his defensive
of lack
Appellant contends
testi
knowledge
concerned.
Mitchell v.
is
See
mony raised the
purchase,
defensive issue of
failing
that the trial court erred in
(Tex.Cr.
Jordan v.
give
charge
an affirmative
on this issue
App.1973); Smith v.
appellant objected
after
to this omission.
(Tex.Cr.App.1973); Dukes v.
161 Tex.
applicable
rule is that if the defensive
Cr.R.
513 S.W.2d
Albrecht
State, 486
(Tex.Cr.App.1972).
v.
97
her
goodness
S.W.2d
heart?
However, the accused’s connection with an
object
We
to that
“MR. HAYNES:
extraneous offense must be shown before
question
asking
it is
this wit-
because
may
evidence
that offense
be admitted.
opinion
why
some
give
ness to
State,
Tippins
(Tex.Cr.
v.
110
530 S.W.2d
assisting in the cam-
person
other
State,
App.1975);
v.
590
Fentis
S.W.2d
paign.
State,
(Tex.Cr.App.1975); Tomlinson v.
He
answer if he
“THE COURT:
(Tex.Cr.App.1968).
knows.
Taylor
appellant
that
asked him
testified
Yes, sir,
they
“THE WITNESS:
to mail
literature and told him
friends,
were
than
sir.”
more
providing
the BISD was
such
that
assist Appellant
was at-
the State
contends
This testimony
ance.
was admissible to
prove that
had an adulter-
tempting to
prove appellant’s guilty knowledge
re
with
Bridges,
such evi-
relationship
ous
with
gard to the charged
Crawley
offense.
v.
inadmissible,
the trial
dence
and that
State, supra.
agreed
Taylor
help,
After
objection.
overruling his
court erred in
appellant’s campaign material was deliv
appeal
contention
Appellant’s
SDISD,
ered to his
office at
where the
objection. McIlveen
differs
trial
from his
addressed,
envelopes
stuffed,
were
State,
v.
559 S.W.2d
stamped
stamps purchased by
(Tex.Cr.
State,
Lejeune
v.
testify
SDISD. While
did not
Moreover,
App.1976).
reflects
record
told him to use school-owned
eliciting a similar
question,
that a similar
stamps,
his
does tend to connect
witness,
answer, was asked of another State
This is
to this offense.
not a case
by ap
objection
Raymond,
Maria
without
in which there was a total absence of evi
error,
pre
pellant.
if
was not
any,
The
dence
the defendant
to the ex
connecting
served.
Cannon
Compare Tippins
traneous
offense.
(Tex.Cr. App.1978).
State, supra;
supra; Fentis v.
Tom
M.
witness
supra;
During
questioning
linson v.
Carmean v.
his
Bercaw, Jr.,
if he
prosecutor
“Q. any relationship Was between there Defendant, jury inflame the minds of the Bridges Mrs. and the lated to suggest Carrillo, her was character to that would cause of such Oscar impression impossibility withdrawing the in his to want aid him to
893 right. That is jurors’ White v. “A. produced on the minds. State, (Tex.Cr.App.1969); 444 921 S.W.2d yourself— it for “Q. You couldn’t do State, (Tex.Cr. Wheeler v. 413 705 S.W.2d Oh, counsel, move “THE COURT: case,
App.1967). In the instant the record on, sake. for Pete’s prosecutor does not reflect asked approach May we “MR. HAYNES: question faith. The question bad the Bench? prejudicial was not so to as to may at the re- You “THE COURT: render the court’s instruction cess. cure the error. insufficient like to We would HAYNES: “MR. Appellant contends that the trial court now. Martinez, permitting erred Ramiro getting This is to be “THE COURT: Ranger, testify punishment Texas at the down, please. a farce. Sit stage being appellant’s reputation If the Court “MR. HAYNES: law-abiding was bad. This contention is please— based on Martinez’ admission that he had to call an “THE If I have COURT: appellant’s reputation never discussed officer, I will. down. Sit persons living community. responsi- I have a “MR. HAYNES: bility my client. qualified
A witness is not
to tes
you to
tify
reputation
that the defendant’s
for be
“THE
I will allow
COURT:
ing peaceful
law-abiding
if the
the recess.
responsibility
bad
at
have that
down,
Haynes.”
witness states that he has never heard that
Mr.
Please sit
reputation
community.
discussed in the
motion for a mis-
Appellant’s subsequent
State,
(Tex.Cr.
Mitchell v.
524
510
S.W.2d
was
the “farce” comment
trial based on
State,
App.1975); Weatherall v.
159 Tex.
denied.
415,
(1954);
Cr.R.
264
429
Gilson v.
S.W.2d
the com
Appellant argues that
345,
182
S.W.2d
was
question,
which he asserts
ment
(1940). Martinez testified
had
accompanied
made in a tone of voice
appellant’s reputation being
heard
discussed
indicating displeasure, was a com
gestures
by persons in
community,
and that his
weight of the evidence. See
ment on the
testimony was based on what he had heard.
38.05,
revers
V.A.C.C.P. To constitute
Art.
permitting
The trial court did not err in
38.05, supra,
in violation of Art.
ible error
testify.
Martinez to
Smith
such that it is reason
the comment must be
(1955).
“Q. gave you envelopes? And to benefit was calculated comment and com appellant. See prejudice State gave envelopes me the box of “A. He State, supra; Hernandez v. pare Kincade I took my and I set them in car and Tex. supra; McCarter v. My off for Benavides. mother Cr.R. going my laundry. wash trial court talking Appellant contends “Q. At the we are about time argument in his prosecutor, laundry permitted home you your would take *17 trial, to phase of the guilt-innocence wash it at the your to mama and have her per- sponsoring counsel of accuse defense you? for are other witness. That argued just you any as jured testimony. The as prosecutor jurors. your duty is as follows: judges of the lawyers “You are the exclusive “It me that Defense amazes case, credibility the of in this proved like all the allotted to facts spend to time them witnesses, weight given to be the and the throwing up smoke screens rabbit something testimony. to talking get trails about the their jury’s off the in this case and mind issues may every- believe regard, you “In that guilt They the of their client. would totally you may says, witness thing a try everyone have involved. you or say, a witness everything disbelieve part them, disbelieve except you may part “If believe you believe the your That is Postmaster, says. of gigantic conspiracy this is what a witness a you here. just why is is are against jurors. Carrillo. That not as That duty Oscar so I think believe it. You you don’t credibility, you judge their you “When totally have all the evidence to disbelieve Defense wit- judge credibility the you to Carrillo is heard believe Oscar you have asked they nesses the same as innocent. credibility of the State’s judge to the could be fair to they Certainly you things some that witnesses.
“What are
regard.”
during
in that
opening
have
You
the
both sides
said?
recall
counsel, they
of
said
statement
Defense
improper for the
certainly
is
It
attempt
prove
to
that
they
that
would
jury, to
argument
prosecutor, in his
Couling and
there was a scheme between
manufacturing
of
defense' counsel
accuse
Chapa.
testimo-
you
Do
remember
suppressing
evidence,
jury,
to
lying
the
ny?
remember that
sorry.
you
I’m
Do
State, 529
the truth. See Lewis
of
Defense
argument
evidence or
Anderson
(Tex.Cr.App.1975);
counsel?
Lopez v.
(Tex.Cr.App.1975);
“I
is no
you
to
there
evi-
submit
State,
. Before this character
evi-
standard,
good
dence
An
against appel-
could be admitted
and for
reason.
lant,
solely
to be tried
on the
there should have been some testi-
accused is entitled
brought against
accusation
him
mony indicating
degree
with a reasonable
pleading; he should not be tried for
certainty
State’s
guilty
being
a criminal
a collateral crime
the theft of the Darnell cattle.
.
generally. Albrecht v.
Walton v.
55 S.W.
(Tex.Cr.App.1972); Ford v.
See Fountain v.
90 Tex.
*20
(Tex.Cr.App.1972).
Evidence of
Cr.R.
School District. addition Tay- ny majority opinion, referred to if the lor testified that asked him some his cam- help school could mail out paign testimony establishes literature. This expected knew and
mailing to be borne costs were appel- school. further testified lant came in from time to time to check on work, as he progress District. School Benavides
The evidence sufficient to show of- the extraneous committed *21 fense. appel-
I reached on concur result ground lant’s of error. 19th J., ROBERTS, participating. MADDOX, Appellant, Newton John Texas, Appellee. The STATE of 58402. No. Texas, Appeals Court Criminal 2. Panel No. Dec. 1979. notes hearsay, appellant judgment is affirmed. “presumption in his brief there is a disregarded trial court the testimo- that the ny hearsay.” is then con- testimony, there is cludes that absent such court’s support insufficient evidence to light disposition finding. In of our contention, appel- first we find no merit argument. lant’s abused its Appellant contends the court CARRILLO, Appellant, Oscar revoking probation in that discretion in the motion to revoke that allegation Texas, Appellee. The STATE County, Texas” “Taylor offense occurred supported by evidence. No. 58109. hearing the In a revocation State Texas, Appeals Court Criminal proving the burden only has Panel No. 3. of this probationer violated the laws (in some other state or the United States 19, 1979. Dec. that he light probation of the condition of against laws of this commit no offense “the States”). any other the United (Tex.Cr. Davila v. Regalado v. App.); (Tex.Cr.App.).