*1 887 challenges de- shall appellant is that was decide all without claim advanced No thereupon.” lay argument right of and without by substantial virtue denied exceeding time al- argument the the State’s the voir dire exam The of conduct lowed. largely the sound must rest within ination v. of trial court. the exceeded discretion the Weaver Assuming that State State, Tex.Cr.App., jury 476 S.W.2d argument, for the allowed 362, State, 298 has Tex.Cr.R. error v. cannot conclude that reversible Grizzell foregoing the circum 816. been shown under S.W.2d stances. complaint appel There that is no that the court erred Appellant contends jury. impartial lant denied a fair and was cause granting challenge the for prospective that the showing There is no prospective juror.
to a ex juror improperly claimed have been not The dire examination was voir the except served cused would have is appellant’s complaint recorded and State, supra. In court’s action. v. Weaver by exception brought forward bill fact, qualification bill of the court’s the re- stated in reflects venireman Ortiz exception not have reflects that he would sponse question by to a the State no discre reached. find abuse of been We difficulty English language, with part cir on the of the court under the tion whereupon juror challenged State presented. cumstances challenge and the cause was sustained judgment The is affirmed. by the court. The bill further recites developed it was that Ortiz read could approved by Opinion the Court. English language. write the bill is The appellant qualified show that and the exercising peremptory chal-
lenges, more cross-challenged three or Ortiz, thirty- veniremen and that who was list, on the fourth reached. 11, Article 35.16(a), Section Vernon’s Ann.C.C.P., provides challenge that a Verle Dennis McBRIDE can be to a for the cause venireman Appellants, “That reason read or cannot write.” v. Texas, Appellee. The STATE requirement ability write The ability proposed
is not satisfied aof No. 47674. juror nothing to write name and more. Appeals of Texas. Court of Criminal contemplates he shall requirement 20, 1974. March writing. express be able to his ideas in Tex.App. (1893), State Johnson April Rehearing Denied 1974. 17 S.W. nothing exception The bill of reflects difficulty
more than the venireman had English language and “it was de- veloped that read he could and write
English language.” that, 35.21, V.A.C.C.P., provides
Article proper is ex- judge, “The court after amination, qualifications juror, of a *2 appellants
The record reflects that Byars and worked for the McBride Unitab Company in Abilene for a number of appellants res- years. Both submitted their ignations (the President Williams Jack 30,May of Unitab) on theory throughout the entire The State’s appellants case was that the entered into a positive agreement between themselves Wichita, Kansas, company form a in new operations whose were identical Unitab. Byars is an accountant whose clients used data doing Unitab processing work. resignations,
Shortly appellants’ after to take their busi- Byars’ clients decided on ad- This was done ness elsewhere. Thereafter, Byars. McBride’s vice of Wichita, in Air newly company formed clients’ Capital Computing, acquired these business. telephoned McBride July
On employed by Wagner, Arnold who was one Wagner computer operator. as a Unitab phone call during testified that Mc- fa- him if do a Bride asked he would program by reproducing the decks vor that he question; McBride stated Wilson, Abilene, appel- Robinson & it; pay him to do and would lants. noon around deliver them should parking of Horne’s 17th in the lot July Paynter, Atty., Ed Patricia El- Dist. A. Monday following liott, Abilene, Restaurant. On Atty., D. Asst. Dist. Jim and Gaf- Wagner told Williams Stevens, (July 17), Vollers, Atty., Buddy Unitab, ford, about Austin, Vice-President Atty., for the Asst. State’s State. call, they all went after which McBride’s From Attorney’s Office. to the District OPINION there, back to Unitab went Gafford question. copies programs back, Wagner had come After Gafford DAVIS, Commissioner. lot, whereupon he parking went to Horne’s Wagner Byars waiting for him. found for the appeals convictions are from car, Byars’ at got into then conspiracy to commit theft. offenses of brought the “he had Byars asked him if guilty, a verdict jury After the returned “yes,” Wagner replied, him.” things with at court punishment assessed car, gave them went back to Appellants contend years, probated. two stat- gave him then him. $40.00 admitting into trial erred that the court a could write if more he ed that he wanted evidence, be- objections, conversations “prearranged gave a check. of the and one arresting officers tween officers, who signal” record, secret we reviewing the appellants. After Byars. promptly arrested agree. Honor, at this Abilene “MR. WILSON: Your
Sergeant Emerson of the Harold record, time, purpose Department for the of the testified that he went any questioning, or Attorney’s Texas Office District purposes of im- approximately for the Ranger along at line Sid peachment, purposes, or other day question; 11:40 on the a. m. *3 Byars of was a box for reason that under came to the officer with Mr. Gafford any cards, Wagner; at the statements gave he to arrest time and IBM went to Wagner Byars that took the cards and after that time while made Mr. he Byars; required by to meet that he under arrest law Horne’s Restaurant was are and lot to to parking writing Merchant also went to the be and sworn before Restaurant, they they whereupon of Horne’s can become admissible into evi- automobile; Byars dence, that sitting saw his must adhere the law that the to they to requires. saw take the of not met Wagner box cards statute These have Byars’ car; them, reason, Wagner that after had for that and that rea- and and they alone, given prearranged signal any both son or him the testimony up read questioning walked to his car. Merchant then regarding this matter. appellant Byars “rights.”1 his Emerson right. “THE COURT: All On that Byars doing, asked what he was alone, your objec- basis I will overrule replied which he he some “buying that was tion. boy”
IBM cards from had this and that he given him Byars for the cards.2 $40.00 exception. “MR. our WILSON: Note was then police taken to the station. Now, “Q. Byars, going back Mr.
Byars, behalf, his testifying own stated just purposes refreshing us that pick up McBride asked him to' an were, you as where we I believe Easy-Code AAACLM deck from are now talking to Mer- Mr. Sid at Horne’s July Restaurant on he chant, that ranger a Texas at Abi- had cards; no intention to steal Department. lene Police We went that there any conspiracy was never or your stay your previous positive agreement between and Mc- employment him your Unitab Bride to steal anything person- from you quit Williams. that statement Upon cross-examination the fol- al reasons. lowing was brought out in his reference to “Then, you being ques- were last conversations with Merchant under while regard tioned with cards whose arrest and at the station: you were that Do box. recall up ? being brought that
“Q. Okay, you Do him telling recall (Ranger Merchant) you also that sir, No, “A. I do not. had also obtained some accounts Now, “Q. you telling recall do Mr. from Abilene Printing and Station- time, Merchant, you, at that that ery? meaning Byars, were entitled Verle “A. I don’t know that I told him about the contents that box and sub-
that; no, Williams, sir. ject or Mr. Wil- Jack Exactly rights what were read do and that “he didn’t if cards” know appear reading authority cards,” (Wagner) from a of the record. sell the However, Byars Sergeant appellant’s objected testified counsel on the basis that warnings appellant However, Emerson read off of a card which under no was arrest. watching would, say objection television, ruling secured, from were on his as legal rights. immediately passed witness was to the de- fense. Sergeant 2. After Emerson had testified given had said “he had $40.00 Well,
liams had refused them to turn “MR. PAYNTER: Hon- Your you, or, over to and this is the reason we offer them for of show- you ing had done ? the inconsistencies with the testimo- ny here at trial and the statements made making recall “A. Not—I don’t to Mr. at the time there at statement; no sir. Department. Well, deny you making that “Q. do right. “THE All COURT: I will ? to Mr. Sid Merchant statement your objection. overrule Now, Hon- Your “MR. ROBINSON: objec- impose or, would like again, we “Q. Did he make comments with this line
tions here to regard to the cards that had been of this questioning the basis that none *4 on placed in this brown box and the any is It is inadmissible for writing. Printing Stationery Abilene purpose whatsoever. Company account? your I overrule “THE COURT: “A. He stated that those cards that objection. belonged some of them to his cus- belonged and some of them tomers ob- We further “MR. ROBINSON: Stationery to Printing Abilene attempt of it is an ject the basis on Company they those the needed to no statements impeachment, and cards in their business. whether as to contrary are evidence These a statement. denies he admits or “Q. any Did he make reference with attempt to improper an are statements regard trying to recover those to impeach him. cards ? your I overrule “THE COURT: Honor, “MR. Your ROBINSON: objection.” object re- again, question to the as to we lating had with this to a conversation testified, had the State After on same is not ba- the Defendant. Merchant to the stand. called impeachment of this any sis of Defend- testified: ant; purports to be a con- that the same Yes, sir, to an office went we “A. he an officer after versation had with in the Detective Division the is same not ad- was under arrest. The Department. as any missible for whatsoever he duly is being writing after not conver- you Did have a “Q. right. All warned. him at time ? sation with your will overrule “THE I COURT: Yes, sir. “A. objection. any you have “Q. Did conversations excep- Note our “MR. ROBINSON: employ- his with relative tion. ment? any reference he make “Q. Now, did Yes, sir, stated he “A. re- attempting regard with
cards ? these cover Honor, “MR. ROBINSON: Your previous to talking about you “A. Are
again
me, Mr. Merchant. We
—excuse
this?
object
any
statement
De-
the
“Q. Yes.
certainly
fendant.
It
shows that he was
had con-
Yes,
He said
“A.
sir.
under arrest at the
at the Police
on numerous
being writing.
Station and same is not
tacted Mr. Williams
stated,
these cards
For
reasons
trying
get
judgments
occasions
cus-
paroperty
are reversed
and other
cause remanded.
some
He turned over
tomers.
Opinion approved by the court.
property
their cus-
and other
them.
turn these cards
ROBERTS, Judge (dissenting).
Now,
you
any conversa-
“Q.
did
have
I respectully
majority’s
dissent from the
regard
Arnold
tion
with
holding.
the majority recognize,
As
these
Defendant,
?
with the
confession,
statements
did
to a
amount
“MR. ROBINSON: We
and,
basis,
my position
on that
I reassert
Defendant
conversation had
opinion
as stated in
dissenting
in But
basis that
after he is
arrest
under
ler
(Tex.Cr.App.
tradict and in a sense, theory corroborate *5 appellant’s objections
case. All of to state- arrest, ments that he made under with the exception one, were The tes- overruled. timony was upon a direct attack his testi- mony criminative, especially and was WINKLE, Appellant, William light heavy of the State’s reliance on cir- v. prove conspiracy cumstantial evidence to a Texas, Appellee. The STATE of this extremely complex case. Nos. 47394.
The statements in question, although not sense, a confession in the strict were nev Appeals Court Criminal Texas. compliance ertheless not in the re March 1974. quirements 38.22, of Article Vernon’s Rehearing April 3, 1974. Denied oral, Ann.C.C.P. The statements in- were culpatory, response and were made in
questions of arresting They officers.
did not lead to the fruits of the crime be previously
cause the recovered the cards at the scene of arrest. There
fore, the statements were neither admissi as original impeach ble evidence nor for purposes. State, Hugley ment See v. Tex. Cr.App., 505 (1974); Martinez S.W.2d State, Tex.Cr.App., 938; v. 498 S.W.2d State, Butler v. Tex.Cr.App., 493 S.W.2d 190; State, Tex.Cr.App., v. Whiddon Harrison S.W.2d Tex.Cr. App., 491 S.W.2d question
While the error in was in the admission of against the statements say beyond cannot a reasonable doubt that the error was harmless as to McBride.