Hill v. State
518 S.W.2d 810
Tex. Crim. App.
1975
Check Treatment

*1 liability. exonerate him criminal Public

policy persons engaged demands that activity

criminal should not be allowed

еscape consequences of their miscon- merely accidentally

duct com- originally

mit offense a different than

contemplated. error is

No shown. complained appellant has not sentence; however, the defective comply with the indeter

sentence does not requirement of

minate sentence Art.

Vernon’s Ann.C.C.P. Howard (Tex.Cr.App.1968); ‍‌​‌‌​​​‌‌​‌​‌​‌‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​​‍S.W.2d (Tex.Cr.

French

App.1967). Accordingly, the sentence provide

reformed to Department

shall in the Texas be confined years than two Corrections for not less imprisonment.

nor more than life reformed, judgment

As affirmed. HILL, Jr., Appellant,

Howard Texas, Appellee. STATE

No. 49435. Appeals of Texas.

Court of Criminal 19, 1975.

Feb. *2 they looking him because were for

knew taken down his license num- someone had ber. prosecutor’s ar-

It is contended that the gument stage at ‍‌​‌‌​​​‌‌​‌​‌​‌‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​​‍the trial con- stituted reversible error.

Appellant’s argued counsel аs follows: “Now, things there are lots sense, got have a just don’t make but we burglary. contesting I am the fact King’s apartment bur Cedric glarized. burglar goes a When apartment house, pick got he has or and Lawrence Tom A. Boardman B. up things got and he has аround move Mitchell, Dallas, appellant. for things. testimony We heard no Wade, Henry Atty., Dist. and T.W. any fingerprints whatsoever that there is Westmoreland, Atty., Jr., Asst. Dist. Dal- or incriminating evidence such as a las, Vollers, Atty., D. David State’s Jim pocket. . ." falling handkerchief out of his Austin, McAngus, Atty., S. Asst. State’s for the State. this, during following

After occurred OPINION prosecutor: DOUGLAS, Judge. : . . (Prosecutor) “MR. WORTHY Now, fin- Mr. Boardman talks about appeal This is an from a conviction gerprints. you think are all reason- I burglary offense of with intent to com- people you can understand able and mit theft. After returned the professional thing, good one that a guilty verdict, pun- the court assessed the burglar— ishment years. at twelve coun- (Appellant’s “MR. BOARDMAN The sufficiency evidence is not object I that. sel): challenged. Wagoner, manager Archie apartment complex, of an receiving professional after “MR. WORTHY: Good telephone tip burglary, about a went in- fingerprints. burglars don’t leave vestigate. apart- When he at the arrived Honor, Your “MR. BOARDMAN: ment, he found that thе door had been testimony in this case about there is no splintered. Appellant was in the hall with is no burglar. There professional a camera and television set his hands. good bur- testimony in this case about victim, They belonged King. Cedric either, there is nо glars, Appellant stated that he was a friend of profes- good dence about taking prop- the victim and was of his care burglars. sional erty. proved Later King Appellant agreed Wag- to be false. with objec- COURT: I overrule “THE po- oner report would this to the tion.” They separate appel- lice. left and cars expe knowledge that It common Wagoner got appellant’s lant fled. auto- burglars do rienced, professional good or po- mobile licensе number and called Defense fingerprints. Appellant leave lice. was arrested in a shed in not no tes there was pointed the fact that out the rear of the residence where his auto- argument of timony parked. mobile was He that he stated him, man written his license that some had reply de- to that of prosecutor was in ” number down. fense counsel. made, it does Taking spontaneous gestae or a broad appellant but is mention the of, superior statement rule adept burglаrs statement to the effect to, applicable limited rules known fingerprints—a well do not leave *3 Miles v. confessions. of voluntariness of State, 705 v. 502 S.W.2d Powell See fact. State, (Tex.Cr.App.1973). 790 488 S.W.2d (Tex.Cr.App.1973). State, (Tex. In 654 v. 458 S.W.2d Jones through Court, speaking Cr.App.1970), v. upon Appellant relies Overton Onion, Judge said : State, (Tex.Cr.App.1973), 556 490 S.W.2d practically argument a under like where may, “Be as it acts and declara- that have was held to the circumstances same part gestae a of the res are tions whiсh that such holding After the been invited. fact notwithstanding the are admissible invited, opinion stat argument an not con- they may that be admissible as argument should ed that such not admissions, rule ‍‌​‌‌​​​‌‌​‌​‌​‌‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​​‍of for the fessions or the rec been because it was outside made оf, superior to gestae res is dictum, is be latter Apparently ord. by the relat- be limited rules cannot argument invit rule is if is cause the that after ing to admissions confessions or State, Hefley 489 it is ed, proper. See v. State, Spann [Tex.Cr.App.,] v. arrest. (Tex.Cr.App.1973).1 115 S.W.2d cited. 128 and cases there 448 S.W.2d 137, 600; 24 Sec. See also In is contended grounds three error of Tex.Jur.2d State, Tex.Cr.App., Fisk 432 S.W.2d v. evi- admitting erred in court a at time of dence he made statement that he was alleges the arrest. He further, Article noted “Still it is thаt right

warned his to remain silent. of Ann.C.C.P., 38.22, 1(f), Vernon’s Sec. provides part: ‘Nothing contained Ann.C.C.P., pro- Article Vernon’s admissibility preclude herein shall vides, part: ** * the res any that is of statement pre- “Nothing herein contained shall of offense.’ gestae of the arrest or admissibility clude the statement Ari application Miranda v. As to the is res made defendant . . . that zona, 1602, 436, 16 L. 384 U.S. 86 S.Ct. . gestae the arrest .” statements, 694, res see gestae Ed.2d to State, Tex.Cr.App, Hill 420 v. S.W.2d The court admitted the statement 408; State, [Tex.Cr.App.,] 437 Brown v. being gestae as res the arrest. The rec S.W.2d 828. ord reflects that was arrested be immediately to brought hind a and was shed “If statement is admissible as a the apartments. front of he was in re- As fact it is handcuffed, being stated to sponse inquiry, he the officers under ar- tо an or while “that looking testimony he knew that we were inad- rest not render the does present case, 1. It is difficult for this writer understand there was no evidence logic fingerprints of the defense There concurrence that introduced. was no legitimate fingerprints a could make statement about dence of or lack of them. Defense fingerprints prosecutor lack of but could counsel this fact. There was commented nothing fingerprints. de answer because the of the record аbout proper. especially prosecutor good stating fense This followed him true It was view statement it is do not leave imj)roper argument prose legitimate as the that will invite the the defense. cutor to follow defense counsel оutside record.

gig Supreme of the Unit- State, written Court Spann supra; Fowler missible. v. State, ed States: v. 162 Tex.Cr.R. 665; State, Tex.Cr.App., Heath v. 375 import The fundamental 909.” S.W.2d privilege is in while individual also, State, Pilcher See 503 547 v. S.W.2d custody he is whether allowed State, 484 (Tex.Cr.App.1974); Tezeno v. police talk the benefit of without ; Anderson (Tex.Cr.App.1972) S.W.2d 374 counsel, but whether he warnings and State, (Tex.Cr.App. 57 S.W.2d no re- interrogated. can There is State, 1972); Moore v. S.W.2d quirement police stop person who (Tex.Cr.App.1969); Ramos police enters a and states that he station (Tex.Cr.App.1967). Cf. Mar crime, person wishes confess to a (Tex.Cr. tinez v. 498 S.W.2d 938 police who offer a calls confession

App.1973). *4 any or he to other statement desires any make. Volunteered statements of State, supra, In Tezeno v. the defendant by kind are not barred the Fifth Amend- under arrest when a statement was admissibility ment their is not af- and by companion made a woman that Tezeno today.” by our holding fected pistol had handed her the when officers entered the cafe. There it was claimed ‍‌​‌‌​​​‌‌​‌​‌​‌‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​​‍admitting in judge The did not еrr deprivation right that there was a of the to refusing to did err in statement and confrontation. The Court wrote: presence hearing hold a outside jury admissibility. had concerning its He mean, . This does not how conclude, sufficient him ever, evidence befоre to prohib Sixth Amendment did, as he was admissi- that the statement

its the extrajudicial admission of state ble as of the arrest. recognized ments under exceptions to the hearsay Kelly, rule. United States v. 720,

349 F.2d (2nd Kay 770 Cir. 1965); Lastly, it is that reversi contended States, assistant, v. United 255 (4th F.2d 476 Cir. ble when the error was committed 1958); Schepps State, v. 432 S.W.2d 926 attorney jury: district stated to (Tex.Cr.App. 1968) Onion, J., on re — hearing. see, Green, Also why strong California v. “Now case? is this 149, 1930, 399 U.S. 90 S.Ct. 26 L.Ed.2d always presumed law has that recent 489 (1970); Texas, Pointer v. 380 U.S. unexplained possessiоn property of stolen 411, 1065, [400,] 85 13 S.Ct. L.Ed.2d 923 is sufficient for guilt.” (1965). Nor does the Sixth Amendment prohibit a state from changing, modify Appellant’s objected, “. ing, enlarging or the general hearsay arguing in charge. He is rule, California Green, supra, v. long so charge.” law that is in as there is a necessity reasonable change, such so long and as the change brief, In appellant his asserts this supported by adequate ‘is basis for as was reversible error amounted surance that the qual those has upon anto charge. аssault the court’s ities reliability and trustworthiness to other long evidence admissible under es though presumption pos- Even from exceptions tablished hearsay to the rule.’ recently session property stolen was not Kay States, v. United supra, 255 F.2d in the charge, it was not misstatement of 480, Schepps State, supra.” v. Appellant law. asserts that the court could charged In have so Arizona, 436, Miranda v. and it 384 U.S. 86 1602, S.Ct. 16 L.Ed.2d (1966), ‍‌​‌‌​​​‌‌​‌​‌​‌‌​‌​​‌​‌‌​​​‌‌​‌​‌​​​‌‌‌​​‌‌‌‌‌​​‍would proper. have been prosecu- authorize will invite and State, Tex.Cr.R. Daywood v. counsel outside to follow defense tor it is (Tex.Cr.App.1952), jury argument, legitimate limits written: par- on the then, invited reply is even does not argument in . Error “. gone into subject matter matters or ticular charge, the court’s going lie in to com- proper It is by defense counsel. contrary to the law stating but lies of the failure argument ment .” same. produce fa- party call for opposing to (Tex. State, 508 Lincoln See Miller v. Cf. vorable evidence. 1974). App. Cr. 680; Tex.Cr.App., 458 S.W.2d Joines contrary No statement It is Tex.Cr.App., 482 S.W.2d thе law contrary charge. No statement improper argue outside record. from shown. No error is was made. reversible failure Here on commented judgment is affirmed. produce any evidence of the State to replied going fingerprints. Thе State ODOM, Judge (concurring). majority’s If the rule outside the record. While in the I concur results reached argument invites the proper even majority, accept I am unable their is now the the record go State outside reasoning disposing apрellant’s law, attorneys State defense ground prose- complaining error argument, to waive would well advised cutor’s The ar- on since will be making *5 was, gument complained profes- of “Good prosecutors go the free license to giving fingerprints.” sional don’t leave outside the matter men- record on analysis majority The follows: is as respect pointed it tioned. this should is “It knowledge experi- common that majority’s interpretation out that of enced, good professional burglars do State, Tex.Cr.App., Overton not leave fingerprints. Defense wrong. is did thoroughly Overton pointed out the fact that was there no say complained that the argument there of testimony of fingerprints. argu- The was invited defendant’s argument. To proseсutor ment of reply was in contrary, pointed that Overton out of that defense counsel.” subject prosecutor’s argu- matter invited, ment was but that the assertion majority proposition assert that the did, fact, go in is too far and constitut- common knоwledge. Are creating ed error. It the action of the permissible additional realm jury ar sustaining objection trial court gument? and in- Alejandro Cf. Tex.Cr. structing App., disregard 493 S.W.2d 230. It is often said that ground Contrary parole error was overruled. law knowledge, is cоmmon but say, to what the majority anything if in does mean may it be argued to the disposition ground jury. error in follow, It does not something from dictum, Overton was it being was the assertion common knowledge, that it is auto matically invited. proper jury argument. If the then, majority, mаjority presented no something else, mean let them ex reason for plain overruling ground of error it. that is convincing to in me. I concur The majority also assert prose- affirmance of the case because the cutor’s was invited by that оf de- conclusively so estab- fense counsel. ?! How Defense counsel lished presented the evidence to the makes a perfectly legitimate argument on jury that I improper find the argument of the failure of the produce State to prosecutor was harmless a rea- dence of fingerprints. How prop- can this sonable doubt. er argument based on the evidence invite or authorize argument from outside the exception I also take majority’s to the record? It is only improper argument unfounded suggestion that gestae the res superior rule is to the United States Con misconceptions I thought

stitution. such rest in

were laid to Smith v. Tex.

Cr.App., risk 507 S.W.2d 779. Let us not

conjuring up ghosts old with loose lan

guage. The bench and bar of this State misconceptions

should have no about

fact that when a statement obtained rights the

violation of constitutional mere gestae” operate

statement “res will not Here, however,

“magic appears words.” spontaneous,

the statement was and not in

response questioning. being There no infirmity,

constitutional exception gestae statutory rule

against oral confessions in Article

V.A.C.C.P., came It is in this play. indepen

sense that the res rule is

dent of rules voluntariness of confes superior

sions. But no sense is

Constitution. Another statement which response question

was in to a asked after properly

arrest was excluded. stated,

For the reasons I concur only.

results

ROBERTS, Judge (concurring).

I concur the results reached

majority that, for the reason in view of

the overwhelming evidence of

presented, the error in prosecutor’s ar-

gument can be said harmless

a reasonable doubt. GUERRA, Appellant, R.

Robert Appellee. Texas, STATE

No. 49665. Antonio, Gonzalez, Jr., Henry B. San Appeals Court of Criminal of Texas. appellant. Feb. Atty., Butler, Dist. E. Ted Gus Wilcox Attys., Battaglia, Asst. Dist. & Alan E. Vollers, Atty. Antonio, State’s D. San Jim Atty., McAngus, Asst. State’s and David S. Austin, for the State.