De La Rosa v. State

317 S.W.2d 544

Tex. Crim. App.

1958

Check Treatment

NEFTALY DE LA ROSA V. STATE.

No. 29,891

Texas Court of Criminal Appeals

June 25, 1958

Appellant’s Motion for Rehearing Overruled October 29, 1958. Appellant’s Second Motion for Rehearing Overruled November 19, 1958.

Mansell testified that he met the appellant at the designated spot. The fact that Warfield was not familiar with the appellant’s voice at the time he had the conversation, we have concluded, would, under the circumstances here presented, go more to the weight rather than the admissibility of the telephone conversation.

Houston v. State, 164 Texas Cr. Rep. 202, 298 S.W. 2d 127; ; and 22 C.J.S., Crim. Law, sec. 644. Appellant’s contention that the conversation was inadmissible because no warning had been given cannot be sustained. If it was the appellant who called, as he said he did, he was not under arrest at the time, and any statement he may have made, however incriminating, would have been admissible. It should be noted in this connection that no motion was made to withdraw from the jury’s consideration any portion of the officer’s answer which was unresponsive.

Appellant next contends that the court erred in admitting into evidence the 45 caliber pistol taken from the appellant at the time of his arrest because it was conceded that the injured party was shot with the derringer. We have concluded that the holding of this court in

Meyer v. State, 160 Texas Cr. Rep. 521, 276 S.W. 2d 286, must here control. In that case, a weapon, not used in the killing but which was found in the accused’s possession, was held to be admissible. In the case at bar, the accused had fled from the scene and armed himself with still another weapon, and the evidence as to the second weapon would be admissible under the general doctrine which permits a full showing as to flight. The fact that he later called the police would not alter the fact that he fled immediately after the shooting.

Finding no reversible error, the judgment of the trial court is affirmed.

Frances G. Culhane and Cliff Tupper, San Angelo, for appellant.

Justin A. Kever, District Attorney, San Angelo, and Leon Douglas, State’s Attorney, Austin, for the state.

WOODLEY, Judge.

The offense is rape by force; the punishment, forty-five years.

The evidence shows that appellant and three other young men forced the fifteen-year-old prosecutrix, whom they had never seen before, into a car, drove to an isolated spot and each in turn ravished and had carnal knowledge of her despite her resistance, three holding the girl while the fourth accomplished an act of intercourse with her against her will.

Reversal is sought upon two propositions, both relating to the overruling of appellant’s motion for new trial.

The first proposition is that the jury considered unsworn testimony relating to parole and clemency.

Shortly after retiring, the jury sent a note to the trial judge which is set out in the court’s answer in writing given to the jury in open court:

“Gentlemen of the Jury:

“In reply to your note ‘Quickest possible time defendant would be eligible for parole under the following sentences?

Life

99 years

75 years

50 years

20 years

you are instructed that the Court cannot give you any information concerning the matters indicated; and further, you are instructed that in your deliberations in this case you will adhere strictly to the Charge heretofore given you and be governed thereby.”

The evidence heard on the motion for new trial, if not undisputed, was such as to support a finding by the trial judge:

That the jurors voted guilty unanimously.
Thereafter some of the jurors questioned the length of time that defendant would be in the penitentiary if sentenced to a number of years and the note was sent to the judge.
None of the jurors professed to know the provisions of the law, but knew that it was common practice for prisoners to be released from the penitentiary prior to the expiration of the full calendar time which the jury assessed.
After being instructed by the court in answer to their inquiry, the matter was not further discussed.

Under the facts set out, we find no ground for reversal.

Walker v. State, 150 Texas Cr. Rep. 421, 201 S.W. 2d 823; ; ; ; ; .

The second proposition advanced by appellant is that the jury discussed and considered appellant’s failure to testify.

The affidavit of Juror Ben O’Neal attached to appellant’s motion for new trial states “During the course of our deliberations, it was mentioned that he did not take the witness stand in his own behalf.”

We do not think that this was a sufficient averment to raise the issue of Art. 710 V.A.C.C.P. being violated. If so, the testimony and affidavits of other jurors were to the effect that after all had voted guilty there was a casual mention of the fact that the defendant had not testified and the foreman immediately stated that such could not be considered for any purpose and it was not mentioned again.

Such a reference to appellant’s failure to testify pleaded and shown does not establish that the jury considered appellant’s failure to testify as a circumstance against him, or constitute ground for reversal.

Powers v. State, 69 Texas Cr. Rep. 494, 154 S.W. 1020; ; ; Branch’s Ann. P.C., 2d Ed., Sec. 589.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.

ON MOTION FOR REHEARING

MORRISON, Presiding Judge.

Appellant seems committed to the belief that any mention of parole or time off for good behavior on the part of a juror during their deliberations will call for a reversal of the conviction. An examination of the holding of this court in

Roberson, 160 Texas Cr. Rep. 381, 271 S.W. 2d 663, , and , will dispel such assumption. It is only where such discussion is an incorrect statement of the law that a reversal will be ordered. .

In our original opinion herein, we failed to mention the testimony of juror Rawls in which he stated that “one of the jurors said it would be easier to reach a verdict or a decision if the defendant had taken the stand, words to that effect.” He further testified that as soon as this remark was made he (Rawls) “immediately warned him that it could not be considered” and that the subject was not again mentioned. In

Low v. State, 156 Texas Cr. Rep. 34, 238 S.W. 2d 769, we pointed out that the question on appeal was not whether the jury commented upon the defendant’s failure to testify but whether such “was taken as a circumstance against him” by said jury. We fail to find from the above that such occurred.

Remaining convinced that we properly disposed of this case originally, appellant’s motion for rehearing is overruled.