In Reynolds v. State
505 S.W.2d 265
Court of Criminal Appeals of Texas
In Bailey v. State, Tex.Cr.App., 531 S.W.2d 628, a case very similar to the instant case, the defense counsel argued, ” . . . But, where is Earnest Minniefield? Why didn‘t The State put him on the stand and let him tell who was in the store?” The prosecutor in Bailey replied, “Now, Mr. Davis says, ‘Well, where is Earnest Minniefield?’ I just want to tell you where he is. I‘m happy to tell you where he is. He‘s in the Texas Penitentiary. . . . I‘m just more than happy to tell you where he is. And, I‘m—he said, ‘Well, why wouldn‘t Minniefield testify? Why wouldn‘t he?’ Well, I‘m here to tell you that Minniefield had an opportunity and he refused to testify against Bailey. Minniefield has been convicted of this armed robbery just like Bailey should be.”
We reversed in Bailey, holding that since defense counsel‘s argument was not objectionable, and no evidence was in the record that Minniefield was serving a sentence in prison for armed robbery, the prosecutor‘s remarks injected new and harmful facts into the case.
[REDACTED] In the case before us, there is nothing in the record concerning pre-trial conversations between appellant‘s attorney and the prosecutor regarding the possible testimony of Baird or Munoz. Likewise, there is no evidence in the record that Baird and Munoz were in Huntsville serving seven years “for this same offense.” As a general rule, such information cannot be admitted into evidence because upon a trial of one charged with crime, it is not permissible to show that another jointly or severally indicted for the same offense has been convicted or acquitted. Walker v. State, Tex.Cr.App., 530 S.W.2d 572; Tucker v. State, Tex.Cr.App., 461 S.W.2d 630; Bacon v. State, 147 Tex.Cr. 605, 183 S.W.2d 177. The unsworn testimony of the prosecutor injected new facts into the case which were harmful and prejudicial to appellant.
The prosecutor could have replied that Baird and Munoz were equally available for witnesses for the defense as they were for the State, Bailey v. State, supra, but the prosecutor could not go outside the record or inject facts that were otherwise not admissible.
The judgment is reversed and the cause remanded.
Opinion approved by the Court.
DOUGLAS, J., concurs in the results.
Ex parte Jewerl BANKS, Jr.
No. 52634.
Court of Criminal Appeals of Texas.
Oct. 20, 1976.
Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State‘s Atty. and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This is an application for writ of habeas corpus filed pursuant to
Petitioner was indicted by the Harris County Grand Jury for five separate offenses of robbery by assault, under the old Penal Code, in Cause Nos. 187154, 187485, 188503, 188770, and 188777.
On May 22, 1973, appellant made his appearance in the 174th District Court of Harris County, and entered pleas of guilty to the court to all of these above-mentioned indictments. Appellant was sentenced to five concurrent twenty (20) year terms of imprisonment, and no appeals were taken of these convictions.
Subsequently, petitioner filed his application for writ of habeas corpus in this Court, contending that the indictments in these five causes were fundamentally defective for the reasons set out in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App. 1973) and Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App. 1975). The trial court denied the application without findings of fact and conclusions of law.
[REDACTED] In reviewing the records before this Court and the indictments in these causes, we are in agreement with petitioner that the indictments for robbery by assault are fatally defective for the same reasons as set out in Lucero v. State, supra, and Bouie v. State, supra. See also Batro v. State, 531 S.W.2d 614 (Tex.Cr.App. 1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App. 1976); Jones v. State, 535 S.W.2d 184 (Tex.Cr.App. 1976).
[REDACTED] Furthermore, it is apparent that petitioner may challenge fundamentally defective indictments by way of a post conviction application for writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App. 1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App. 1975).
For the reasons above stated, the writ of habeas corpus is granted, and the convictions in the above-mentioned cause numbers are set aside and said indictments are ordered dismissed.
DOUGLAS, Judge (dissenting).
The relief sought should be denied because the only reason for the indictments in the five causes to be fundamentally defective is that the majority of the Court has added an element to the offense of robbery under the former penal code which was not required by any statute. These convictions were final. We have enough cases without causing new ones by enacting clauses into the statute. See the dissenting opinion in Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App. 1975), for a full discussion of the subject.