*1
appears
that evidence
treme cases where
Evidence of unrelated offenses com
mitted
ad
inflame minds of
generally
clearly
a defendant is
not
is
calculated to
missible unless that
is introduced
is
evidence
of such character
jury
intent,
identity,
or
establish
motive
impossibility
withdrawing
suggest
State,
scheme.
Chambers v.
S.W.2d
See
See
impression produced on their minds.
State,
v.
(Tex.Cr.App.1980);
Albrecht
(Tex.Cr.
State,
v.
1976); Ratcliff v.
(Tex.Cr .App.1974).
During the direct examination and examination, on cross the is
subsequently
sue of whether the threats were and, therefore, intentional, not, serious or DARDEN, Appellant, Earl Joe became the offense of apparent. Because culpable proof men requires retaliation Texas, Appellee. knowingly intentionally, tal state or The STATE of evidence of extraneous offenses would No. 60576. prove made the admissible to Texas, Appeals of intentionally. initial threats See V.T.C.A. of Criminal Further, Penal 36.06. the extra Panel No. sufficiently neous were similar to threats 17, 1982. March charged those instant case. The person, threats made to the same locality, time to the initial
the same close in pre purpose
threat and for the similar
venting threatened indi punishing giving police.
vidual for information
We challenged conclude evidence
properly issue intent. admitted ground
This error is overruled. ground of con-
Appellant’s final error by refusing
tends the trial erred
grant a when Karen Anderson tes- mistrial jury presence
tified reputation. had a bad reputation ev
The introduction of
idence at a time when the defendant reputation issue error. placed into however, disregard, prompt
A instruction to except
will
cure
in ex-
generally
the error
*2
Sullivan,
Jr.,
system
III,
Bates,
to check the
at some time
Frank
Earl E.
W.
Worth,
appellant.
eight
Fort
hour shifts. Such a check would
their
removing
employee
Kane,
Curry,
Atty.,
Tim
Dist.
& William
clip
listening
for the motor
money
then
Strickland,
Borg &
Jack
Howard
C. Chris
running.
camera
start
Marshall,
Worth,
Attys.,
Asst. Dist.
Fort
Huttash,
Austin,
Atty.,
Robert
Buckner testified that she
State’s
Janet
*3
Quik
had worked the
the State.
clerk at the
Sak. She
when
eight hour shift which ended
Castle
ONION,
J.,
Before
P.
and TOM DA-
G.
p.
February
for work at 8:00 m. on
reported
CLINTON,
and
VIS
JJ.
viewing
developed
the
1977. After
mo-
film,
recognized
picture
tion
Buckner
her-
OPINION
having
by the
photographed
self as
been
pho-
that she had been
camera.
stated
She
DAVIS; Judge.
TOM G.
when she tested the camera at
tographed
Appeal is taken from a conviction for
p.
February
13.
7:30 m.
aggravated robbery.
finding appel-
After
Coleman,
the
.
Charles
of
Fort
Officer
jury
punishment
lant guilty, the
assessed
at
the first of-
Department,
Police
was
Worth
years.
arrive
the scene of the offense.
ficer to
Appellant
aggrava-
was convicted of the
he
officer stated that
arrived
Sidney
ted
a
robbery
Quik
Castle at
Sak
February
at 3:05 a. m. on
Cole-
store
February 14,
store in Fort Worth on
behind the counter
man found Castle
gunshot
Castle
as a
wounds
died
result of
viewing
developed
motion
store. After
during
he
received
the course
the rob-
film,
recognized himself
picture
Coleman
bery.
years
age
was
Appellant
sixteen
having
photographed upon entering
at the
of the
time
offense.
for
examining
any
store and
victim
In
through
grounds
second
seventh
life.
sign of
error,
appellant contends the court erred
that between the time
The record reflects
admitting six exhibits into evidence. The
appear on the
that Buckner and Coleman
developed
exhibits consist of a
mo-
reel
film,
two individuals stand-
depicts
the film
picture
tion
photographs.
film and five
of the
the counter of the store. One
ing at
represent enlargements
photographs
holding
a firearm
is shown to
individuals
picture
five
from the
film.
frames
motion
of the
pointed
direction
which
Appellant
inad-
maintains the exhibits were
body. Appellant was identified as
victim’s
missible
was no chain of
there
“because
the counter.
holding
man
the firearm at
custody.”
urges
impossible
He
that “it is
pho-
a
Eudaley
that he was
Dan
testified
tampering]
...
remove
doubt [of
Police
for the Fort Worth
De-
tographer
say
when no
can
was
one
where
film
stated
he
partment. Eudaley
kept or how it was handled after it was
developed
from the
mo-
photographs
five
removed
store camera.”
repre-
photograph
Each
picture
tion
film.
Norman Richard
that he was a
testified
of the film. He
a different frame
sents
Burglar
manager
sales
Alarm
Armco
photographs fairly
that each of
testified
System.
Quik
He stated
Sak store
from the
accurately depicted a frame
and
picture
with a
camera
equipped
motion
reproductions
were exact
they
film in that
which was mounted on
wall and aimed
Eudaley
except
size
color.
further
and
register.
at the
related that
cash
Richard
reel
stated that in his examination
pictures per
the camera took two
second
film,
no
find
evi-
picture
could
money
clip
activated when a
modification, alteration, splicing or
dence of
register.
removed
cash
Since
tampering.
use,
camera
not in
reel of
constant
photographs
days.
pictures
film
last
several
Fi-
Motion
would often
proof of
employees
provided
admissible
there
nally,
related that
are
Richard
accuracy
representation
their
as a
tice of
Peace
correct
for Precinct
Place
the subject
given
they
at a
time
County.
appellant being
Tarrant
Due
material
disputed
Roy
relevance to a
issue.
juvenile,
given
following
he was
warn-
(Tex.Cr.App.);
S.W.2d 645
ings by Ashmore:
(Tex.Cr.
Williams v.
We find properly grade the court admit law the Juve- felony, ted photographs picture and motion jurisdiction nile waive its film. items readily Such identifiable you may be tried as an adult.” and admissible after proper predicate Appellant questioned by was then Officer by established depicted those who were D. R. Thompson of the Fort Worth Police on the film. Just as we have that the held Department. Approximately ten la- hours photographer need not be the verifying wit ter, appellant Thompson appeared be- ness, we likewise hold that there is no re Bowen, fore the Judge Honorable Robert quirement for the State to show the details Pro Municipal Tern for the Fort Worth of the development process in order receiving warnings Courts. After the same photographs or pictures admis given Bowen had Judge sible. Appellant’s through second seventh by Ashmore, Judge signed grounds of error are overruled. statement which was admitted into evi- error, ground In his first appel Thompson dence. that he did not stated lant contends the erred admitting any warnings administer be- his written into statement evidence. Ini fore taking the statement him. tially, he contends the statement was inad It is thus contention that the missible because he was properly not 51.09(b)(1), supra, warnings provided Sec. warned. by Family not Code are sufficient Appellant was arrested at his short- home 38.22, V.A.C.C.P., satisfy Art. and Miranda ly midnight before on February Arizona, v. 384 U.S. S.Ct. arrest, At the time his his given (1966). Specifically, appellant L.Ed.2d 694 warnings by Officer J. R. of the Owens urges warnings are insufficient Fort Worth Police Department. juvenile in- because the accused is not
Following arrest, appellant was taken formed he is coun- employ that if unable Ashmore, sel, before the Honorable Robert lawyer appointed Jus- will be for him. warnings provided by 51.09(b)(1). 1. The are Sec. oppor- reasonable time and (Tex.Cr. son arrested v.
In Meza and shall admit tunity counsel urged that to consult juvenile defendant App.), the by if person to bail allowed arrested 51.09(b)(2), supra, unconstitutional Sec. added). (Emphasis con law.” permits oral police because it take warnings. The Miranda fessions without signed by appellant con- The statement this Court rejected after contention he received from warnings which tains the 51.09, supra, not dis does held that Sec. 51.09(b)(1),su- under Judge Ashmore necessity of Miranda warn pense with the warnings on the face pra. One of Thus, the instant ings. the confession in appellant was recites that the statement if it only case would admissible to em- I am unable warned: “... that if compliance shown to have been taken in right to have attorney, I have the an ploy 38.22, supra, with Art. Miranda. prior me to or with attorney an to counsel peace with officers during any interview Thompson did not warn Since statement, attorneys the State.” representing taking time of sought compliance Art. State show 591 S.W.2d In Eddlemon 38.22, supra, following provision: under maintained (Tex.Cr.App.), the defendant 2. No statement “Sec. written insuffi- warnings he received were that the inter- an accused a result custodial they 38.22, supra, because cient Art. under against as evidence rogation is admissible statutory language did track proceeding unless it him in criminal rejected the contention statute. The Court face of the statement is shown and stated: that: warning *5 this “Appellant claims that accused, making the “(a) prior the to because, Art. 38.22 comply with failed to statement, a mag- received from either right appointment the to mentioning in warning provided the in Article istrate track warning does not the lawyer, of a ...” 15.17of this code right to repetition of the statutory the ‘prior to or counsel appointed 15.17(a), provides as fol- such Art. V.A.C.C.P. in- further questioning’ and any during lows: clause, judicial au- proper ‘by cludes a Code, case in this “In each enumerated in the statute. is not thority,’ which the shall with- person making the arrest advised person “We hold that delay take the unnecessary out with Art. compliance full rights his in before some arrested or have him taken in that rights the listed county 38.22. All magistrate of the where ac- warning giv- in the were included shall statute magistrate The cused arrested. police. Appellant, by en to language person in ar- inform clear experience with demonstrable him an adult and against rested of accusation proce- criminal knowledge of therewith, with and of his filed any affidavit dure, he confused that was counsel, not claim right to does of his right to retain did he asserts that and never silent, right have an misled his to remain warning rights. A his not understand interview attorney present any face of the state- on ‘the repre- conveys, which attorneys peace officers or lan- slightly different only state, ment’ and senting right of his to termi- of the statute time, meaning guage, the exact of his any nate interview with the statute. comply to of coun- is sufficient request appointment right to state- position attacks the Appellant’s and afford indigent if he is cannot sel error —tech- to the scrivener’s counsel, ment ‘due right to have an exam- and of his It with the statute. noncompliance per- nical ining also inform trial. He shall requirements feeling that required reflects arrested that he son ritualis- more a have become of Miranda any and that state- make a statement protect the than a means tic formalism may against used ment made him by Bu- privilege.’ per- underlying constitutional magistrate The shall allow him.
51
bany,
judge
The Texas
at the
v. Denno
Confession Statute:
Jackson
Bottle,
Some New Wine in the Same Old
hearing
judge
weight
is the
sole
10
(1978);
Tex.Tech.L.Rev.
also
see
be
credibility
the witnesses. He
id. at
The privilege
protected;
all or
any part
lieve or disbelieve
reject appellant’s
we
Id. at
position.”
Hughes v.
testimony.
witness’
(Tex.Cr.App.), Myre
S.W.2d
warning
ap-
actually given informed
(Tex.Cr.App.). The
evi
counsel,
pellant
employ
that if unable to
he
raised issues of fact as to waiver of
dence
right
had a
attorney
have an
counsel
alleged
acts of coercion
counsel
15.17,
warning
with him.
supra,
The Art.
that there is evidence
Thompson. We find
states that the accused is to be informed of
finding
support
court’s
that
right
request
appointment
Thompson
did not
waived counsel and
indigent.
counsel if he is
We conclude that
taking appellant’s state
improperly
act
warning actually
given, although
totality
We
that under the
ment.
conclude
slightly
language, conveyed
different
supports
of the circumstances the evidence
meaning
same
warning
contained
confes
finding
court’s
15.17,
within
supra,
Art.
therefore
freely
voluntarily given
sion was
after
38.22,
sufficient to satisfy
supra.
Art.
We
his
appraised
rights
he had been
fully
further
the warning given
ap-
find that
affirmatively
rights.
waived those
See
pellant
requirement
satisfied the Miranda
(Tex.
McKittrick v.
that he be informed
he
that if
cannot afford
Cr.App.).
an attorney, one will
appointed
for him
prior to any questioning
he so
if
desires.
Finally,
appellant contends
Appellant further
contends
confession
admitting
erred in
because
statement
was inadmissible because
did
not know-
was obtained while he was in
statement
ingly and voluntarily
rights.
waive his
At
in violation of
custody
hearing,
conclusion
the suppression
52.02(a)(3).
pro
That
statute
the court entered
findings
ap-
recite
taking
upon
custody,
vides that
a child into
pellant knowingly waived his constitutional
*6
unnecessary delay
he is
be taken without
to
rights and voluntarily gave the statement
facility designated by
to
a detention
to authorities.
juvenile court.
Judge Bowen testified that when appel-
show
A review of the record fails to
that
signed
confession,
lant
he indicated he
objections, appellant
among
many
his
doing
was
so
When
voluntarily.
to
on the
sought
suppress
confession
51.09,
received
supra, warnings
his Sec.
Ashmore,
illegal-
it was taken while he was
Judge
basis that
he indicated he un-
warnings.
52.02(a)(3),
derstood
Finally, Thompson ly
supra.
detained under
stated
during questioning,
that
thus dif-
Appellant’s
appeal
contention
responded in the affirmative when asked
objection
presents
fers from his trial
whether he understood
warnings
State,
nothing for review. Carrillo v.
591
Judge Ashmore. Thompson further stated
State,
v.
(Tex.Cr.App.);
Stutes
threatened,
that
was not
coerced
(Tex.Cr.App.).
complained argument in the around, not in kid it’s to turn this chance jury it asked improper because prison.” walls of possibility of an extrane speculate as to the However, conclude the ous offense. we argument, light In disregard was suffi court’s instruction not con- response does prosecutor’s thereto v. Shippy Alejandro cient cure the error. v. reversible error. stitute Miller (Tex.Cr.App.); S.W.2d 246 (Tex.Cr.App.). 493 S.W.2d (Tex.Cr.App.). Appellant’s is affirmed. judgment The without merit. eighth ground of error is CLINTON, concurring. Judge, error, ground appel ninth In his overruling lant contends court erred first under his appellant contends The argument by objection jury improper admit- the confession ground of error that prosecutor. complained argu is “the jury evidence before ted into ment is as follows: detention,” proscribed illegal an fruit of this, gen- 52.02(a). “... tell ladies and I will § *7 tlemen, say- six months later if he had done it disposes his contention majority of because, capital murder and have been presented would is for review nothing ing the penalty that’s offense in confes- a death to the many objections among his Texas. was not illegal State of detention sion, alleged such the apparent reason mercy the of voiced.2 already “He received now neither has parties the says the briefs of law mercy the law. —even beginning appellant odyssey traced the younger months you thank were six God midnight. his kin about at residence of than said could what law Judge Municipal Bow- Pro Tern emphasis indi- office All is mine unless otherwise 16, Although February midday about cated. en during testimony about them was much there suppress, finally hearing State in evidence 2. The admitted to confession have been made to the shown to two statements third statement tender the first did not shortly mid- of his arrest before jury. the time February appeared night he in the 15 until Family Code, 3, I Delinquent address contention in the interest Title justice. Supervi- Children and in Need of Children sion, is to be construed to effectuate Owens,
Officer J. R. an officer in the division, public policies radio patrol was to to set forth in 51.01. go § directed Section that appellant, residence to pre- and arrest 52.02(a) provides: sumably familiarity because of his with the “A person taking custody, a child into neighborhood past acquaintance and with unnecessary delay without and without appellant, Arriving there, himself. elsewhere, taking first the child shall do appellant undress, found ain state of and following: one accompanied Having him into a bedroom. ing one seen sweater with a thought figures to the motion appellant shown, to be distinctive picture that “it appellant Owens knew that film design. was fairly wearing actions Remark- cold Section a ty (3) bring the child to a detention facili- designated by [******] 52.02(b) mandates that such juvenile court...” person coat,” outside he might get and need to a promptly give “shall notice of his and action Owens watched as extracted from a taking statement of the reason for pile a in clothing nearby chair custody” child into child’s parent, sweater, and donned it. They then drove guardian or custodian and the office or the Public Safety and Building Courts juvenile designated by official court. Throckmorton, which also housed the The record is not too clear as Fort Worth Department. Police precise place within the Public Safety Assigned to assist in the investigation of Building appel- Courts Owens first took the robbery, Detective Thompson D. R. had except definitely that he was not lant4 — viewed the film with Officer Owens. When tank, confined holdover other cell. he first saw appellant police at “the sta- But we interrogation can be certain that tion” appellant wearing a sweater. formally began m., 1:25 a. after took appeared Since it the same sweater place in a film, room the Homicide shown in the Office Thompson Detective gave the police department; instructions to two take sweater it resulted in from appellant, telling the officers “when statements, being completed the last at 3:33 they did take him to the Juvenile Detention m., magistrate’s warning a. followed aby Center, they clothing take ... to re- [all] 3:47 a. m. Then returned tain it purposes.” for evidence Officer Ow- the Juvenile Detention Center. ens took to the center “some- I fairly believe it cannot be found that where about 12:30 or thirty 1:00” —some early what occurred here morn minutes after arresting him escorting 1977, ing February hours of effectuated him police to “the Appellant station.” public policies prescribed in Title 3 of taken to the center he changed “where Code; I clothes,” agree further with the brought was then back D.M.G.H., Thompson; opinion Detective expressed Matter of clothes were tagged placed in the crime lab as evi- (Tex.Civ.App. 553 S.W.2d Paso — El dence.3 history) no writ in similar circum stances, applicable provisions 52.- §
Every statement, them, written two complied in the handling confession ultimately admitted in evidence came thereafter. juvenile.5 of appellant, delinquent this *8 system 3. justice early The above recitation is drawn vis from the record vis a its criminal as testimony 1907, 65, 137, of Leg., report- Officer p. Owens and Detective Acts ch. 30th Thompson, e.g., 77-78, 180, 181, pages at continuing 183. ed cases reveal tensions between “rights” the thrust of for for advocates more 4. Owens believed was it the crime lab area. juvenile parry by offenders and the advocates “rights” society. See, e.g., complaints of began struggle 5. The State of Texas with problems dealing delinquent in with children 54
However, aside, appellant his confession starkly committing shown film for convicted. Ac-
offense judgment I
cordingly, concur
Court. BOLLMAN, Appellant,
Michael Louts Texas, Appellee.
The STATE
No. 61194. Texas, Appeals Criminal 2.
Panel 17,
March Alford, appellant. Orange,
Joe D. & Wright, County Atty., C. William Jr., Jenkins, Atty., County Asst. James O. Huttash, Aus- Atty., Orange, Robert State’s tin, for the State. J., ONION, W. C. DAVIS P.
Before McCORMICK,JJ. OPINION DAVIS, Judge. W. C. from a conviction appeal
This is an jury assessed aggravated kidnapping. The imprisonment. punishment years chal- evidence not sufficiency of the lenged. requirements,” of H. inadequacies Matter must adhere its in Gordon v. advanced S., 446, 1095, Jr., (Tex.Civ.App.— (1920, 1921)
Tex.Cr.R. S.W. said, and, 1978), aspects “Police and some the historical record Amarillo officers, parte Morgan, han involved in the traced in Ex courts and others (Dissenting Opin- comply (Tex.Cr.App.1980) juveniles dling bound to 133-134 are Trahan, ion) parte procedures explicit and in Ex enacted detailed Code,” major legislative (Tex.Cr.App.1980). [Family] Legislature last Matter in that D.M.G.H., Still, every supra, when Title 3 was failure effort Family Code, pur- public subsequent compliance added to the and its crimi revealed 51.01, supra. long poses necessarily So § were stated in constitute such prosecution nal will proce- Legislature prescribes constitutional infringement a new trial. as to warrant an pertaining “the State dures to these matters