Cloyce Leon (Ducky) McCALEB, Appellant, v. The STATE of Texas, Appellee.
No. 51051.
Court of Criminal Appeals of Texas.
June 9, 1976.
Rehearing Denied June 30, 1976.
537 S.W.2d 728
Although the disposition of a motion for continuance lies within the sound discretion of the trial court, Chance v. State, 528 S.W.2d 605 (Tex.Cr.App.1975), if the object of the Sixth Amendment to the United States Constitution is to be met, an appellant should be allowed representation of his own choosing. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). This is especially so when a request for such representation is not unreasonable and would not unduly hinder the administration of the trial court.
In this instance, appellant presented a verified motion for continuance. Appellant had previously requested only one other continuance. The testimony showed that neither request for continuance had been due to any lack of diligence or preparation on the part of appellant or his attorney, but rather due to circumstances beyond either‘s control. The record shows that appellant had hired Beech several months before the trial, that Beech had discussed the case with appellant on a continuing basis and that he was more familiar with the case than was Blankenship.
The evidence given at the motion for continuance also supports appellant‘s contention that his retained counsel was hospitalized and that Blankenship was an employee not a partner in Beech‘s office. The record also shows that Blankenship, at the beginning of appellant‘s trial, was in the midst of another trial and was not free to concentrate on appellant‘s case. There is no indication in the record that the motion for continuance was an effort on appellant‘s part to contravene his earlier motion for a speedy trial or that the attorney‘s illness was feigned in any way.
The nature of the offense and record of the trial would indicate that the morning given to Blankenship to familiarize himself with the facts of the case would not be sufficient time to prepare an adequate case for the appellant.
We should hold that in this instance the trial court abused its discretion in forcing appellant to trial without benefit of counsel of his own choosing.
The judgment should be reversed and the cause remanded.
ONION, P. J., concurs in this dissent.
Clifford W. Brown, Lubbock, for appellant.
E. W. Boedeker, Dist. Atty., Levelland, Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the offense of theft of property over the
In his first ground of error, appellant contends that the trial court erred “in failing to require the State to elect as to which transaction, shown by the evidence, it would rely upon in seeking a conviction under the allegations contained in the indictment.”1
The record reflects that appellant made a motion to require the State to make an election as to which transaction it would seek a conviction under at the close of the State‘s evidence. In his objections to the court‘s charge, appellant again complains of the court‘s failure to require the State to elect.
The indictment alleged in pertinent part that appellant
“... on or about the 13th day of November, A.D., 1972 and anterior to the presentment of the Indictment, in the County and State aforesaid did then and there unlawfully and fraudulently take lawful money of the United States of the value of over fifty Dollars the same then and there being the corporeal personal property of and belonging to Wayne C. Hill. ...”
Appellant relies on Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366 (1957); Adams v. State, 126 Tex.Cr.R. 492, 72 S.W.2d 912 (1934), and Roddy v. State, 118 Tex.Cr.R. 315, 40 S.W.2d 129 (1931), in support of his contention.
The record reflects that appellant obtained more than $24,000 over a period of more than five months from the prosecuting witness, Dr. Wayne C. Hill, by representing to him that he had found a cache of silver and would give the prosecuting witness a por-
On February 6, 1973, Dr. Hill gave an additional $5200 to appellant. He advanced the additional money to appellant on the condition that appellant give him a promissory note to cover all monies previously advanced under their agreement. Only after appellant had given his note for $15,800 did Dr. Hill advance the money. The record reflects that sometime late in January Dr. Hill refused to give more money for equipment and supplies “because I had spent enough money and had not seen anything and no evidence of buying equipment, no bills of sale or anything like that, so I balked on him. I didn‘t give him any money at that time.” A portion of Dr. Hill‘s testimony relating to the February 6th transaction is as follows:
“Q. All right, did you, as a result of him talking to you at that time, did you give him anymore money?
“A. Under certain conditions.
“Q. All right, what were those conditions?
“A. That he give me a note for the amount that I would spend this time and the times previous; up to that time, suggested by Hunter.
“* * *
“Q. All right, and what was your conversation there with Mr. McCaleb-to Mr. Hunter at that time concerning some more money?
“A. That I would advance some more money for this half truck, providing he gave me a note for this amount and the previous amount that I had given him already at three months-ninety days at 8 1/2 %.
“* * *
“Q. All right, and how much did he give you a note for at that time?
“A. Fifteen thousand, eight hundred dollars.
“Q. All right, did you give him a check at that time?
“A. I gave him a check at that time.”
The sums of money previously given appellant by Dr. Hill to include the $5200 given him on this date total $15,800.
On March 2, 1973, Dr. Hill furnished appellant $4500 more on the strength of appellant‘s representation that the money was required to purchase further equipment and supplies and to make repairs to equipment already purchased in order to continue the removal of the silver. Finally, on the 20th of April, 1973, Dr. Hill gave to the appellant another $4,400 check above and beyond their previous agreement on the strength of the appellant‘s representation that these final funds would enable him to complete the job of removing the silver from the canyon. All of these checks were cashed by appellant and the funds applied to his own use. The cache of silver never existed and no equipment or supplies as represented were ever purchased.
The evidence is clear that McCaleb‘s purpose was to “con” Dr. Hill out of as much money as possible. He designed a scheme based upon a non-existent silver cache in Nevada as the device by which his purpose could be accomplished. First, he sold a one percent interest to Dr. Hill for him and his
The present case is like McClelland v. State, 390 S.W.2d 777 (Tex.Cr.App.1965), wherein this Court held that the State is not required to elect in a prosecution for bribery where it was dealing with one offense which involved many transactions. In the McClelland case the transactions occurred over a period of time extending from December 2, 1960 through May, 1962. During that time McClelland, then Probate Judge of Harris County, had accepted bribes from five different individuals in order that they might be appointed appraisers in cases before his court on 3511 occasions. During the same period 257 other persons had been so appointed to act a total of 2225 times. McClelland had established a bank account for his own use and benefit under the name of Tierra Grande, Incorporated, a corporation duly incorporated and licensed to do business in the State of Texas. No business was ever conducted by the corporation but the money in the account “... was used to pay his club bills, parking garage fees, payment on automobiles, to send his son to camp, to pay gasoline bills, and a large part was paid to the appellant or to his wife directly.”
After a conviction where one scheme has been relied upon and all of the transactions have been proved and where there has not been an election, the State cannot prosecute upon the individual transactions in subsequent cases because each transaction was a part of the same case.
We hold that the trial court did not err in refusing to require an election.
Those cases upon which appellant has relied to the extent that they were in conflict were in effect overruled by McClelland v. State, supra. We adhere to the ruling in the McClelland case.
In his second and third grounds of error appellant complains of the admission of evidence and the refusal to give limiting charges regarding what appellant contends are extraneous offenses involving the sale of an interest in the alleged silver cache to Dr. Hill for his wife, E. J. Watkins and Mary Riley. The record reflects that Dr. Hill actually purchased the interest for his wife and that appellant‘s counsel brought out the Watkins’ involvement during his examination of Mary Riley. As to the admission of Mary Riley‘s testimony, the error, if any, was harmless. We fail to see how the jury would have or could have considered these transactions for a purpose other than as circumstances bearing on the appellant‘s intent, motive, etc. The failure of the court to limit the consideration of her testimony to a certain purpose, where that testimony could not have been used for any other purpose, does not require reversal. Kirkpatrick v. State, 515 S.W.2d 289 (Tex.Cr.App.1974); Ross v. State, 71 Tex.Cr.R. 493, 159 S.W. 1063 (1913), and Sapp v. State, 476 S.W.2d 321 (Tex.Cr.App.), cert. denied, 406 U.S. 929, 92 S.Ct. 1806, 32 L.Ed.2d 131 (1972).
No reversible error having been shown, the judgment is affirmed.
ROBERTS, Judge (dissenting).
For the reasons stated in my dissenting opinion in Kirkpatrick v. State, 515 S.W.2d 289, 294 (Tex.Cr.App.1974), I dissent to the overruling of appellant‘s three grounds of error.1