*1 without a County, the District Court of Hansford
Texas, alleged for enhancement.
No was made at the issue instant County
as to counsel the Hansford con
viction. only evidence in the record
pertaining to said conviction is the authen copies indictment, judgment
ticated judgment
and sentence. The reflects appellant appeared person presented. counsel. error is Den State, Tex.Cr.App.,
nison v.
365.
It is that the observed indictment primary two offenses-—one for
embezzlement one for theft. The court only
submitted jury, offense to
and the verdict of the found
guilty judgment
sentence recite that the was ad
judged guilty of embezzlement of fifty
over judgment dollars. The
sentence are reformed to show
conviction was had for
felony theft. reformed,
As
court is affirmed. Hazlewood, Amarillo, appellant. for Jack McINTIRE,
Billy Appellant, Fred Compton, Gene Atty., Dist. Bob D. Slough, Amarillo, Asst. Dist. Atty., Texas, Appellee. The STATE of Douglas, Leon B. Atty., Austin, State’s No. 41318. Appeals
Court of Criminal Texas. OPINION June MORRISON, Judge.
The offense felony theft with two prior felony alleged convictions for en- hancement; punishment, life. We find unnecessary to appel- discuss lant’s grounds first four of error because *2 .6 Mustang, ants were later arrested fifth who have that his
we concluded de- apparently carried the safe which had this a conviction. calls for reversal State, supra, it was in Bird v. scribed testify and the At exculpatory in he that the the upon the relied State the of the safe. participated in to Keeton, in accomplice, and order Jerry in- accomplice witness, such corroborate exactly the situation troduced into evidence given suggested charge the given in co-defendant a trial of his holding Wooley v. according to our in Tex.Cr.App., (See Bird Bird. 218, 378, 162 Tex.Cr.R. S.W.2d 919). on was charge alibi 423 S.W.2d Wooley, In cited therein. the authorities given explicit objections, the and over supra, we said: the charge in failed to include court the that where “The rule is well settled in suggested instruction set forth Section in evi- upon and introduces relies State Ann., 7th Criminal Forms Willson’s accused dence the confession Edition, as follows: it is bound guilt, establish his a “The State has in evidence therein exculpatory matters contained B., defendant, by statement made the A. they by the evidence to until are shown you the are that state instructed untrue, circumstances and under such the statement con instruct duty it is the court to so the therein, you tained to-wit:—and unless jury.” the that reasonable believe a doubt State, Tex.Cr.App., 365 In Cavazos v. has the state evidence the State therein, you will statement contained upon that the officer’s arrival say acquit the defendant of—and he and house, that appellant told witnesses your Guilty’.” verdict ‘Not evidently and that had been robbed deceased if was In to determine such order thief. had been killed deceased required, to examine the conviction because This reversed Court appellant’s testimony which on of the failure the Court Appellant testi- in this case set forth above. statements as night fied that he with Bird on 135Tex.Cr.R. upon We relied Otts v. charged having Bird was with committed 28, 1454 and 116 A.L.R. 116 S.W.2d they Ann.P.C.2d, burglary question; in that sat collated in 1 Branch’s cases drinking or twelve authority. around until twelve 95, p.
thirty went time he (appellant) State, supra: quote We from Otts bed; shortly Bird be- went bed he next (appellant) he did and that fore in and introduces “But the comes State thirty Bird saw at seven or seven showing signed statement following morning; that he did not believe purchased this good that he had in faith Bird Lumber Com- had another, exculpating him- meat from thus (Bird) pany knowledge no had self.” he, Bird
had done He admitted so. for the failure of the Otts reversed their two co-defendants set a similar the one give Court to Lumber Com- burglarizing the same forth above. pany replied that his defense was he did not commit Judge Hawkins, writing rehearing in Otts, supra quoted Judge in Lattimore testimony incul- While “ * ** proving its case pated near follows: in that it him him statements the state night scene true, which, entitle if would his co-defend- accused company committed disproved by a doubt State be some reasonable acquittal, there should him to an and that cannot look to given to positive direct and instruction disproof jury to that effect. Robidoux v. the Defendant 863.” *3 testimony at the same time corroborate prov at In the case bar the state accomplice portion of thereof any or jury appellant’s ing its case before the testimony exculpatory of effect testimony given at a defendant.” asleep the time the that he in bed at error sustained burglary was says witness so, majority is it is not before us. If jury committed. Then without merit. “* * * told, Judge Lattimore said: plain language, and unmistakable not reflect record does ob- they may is en know that the defendant jections presented in writing were or acquittal exculpatory titled if such upon by acted be judge the trial unless it not statements be or shown entry: Objections the docket “11-7-67 testimony.” false other noted and overruled.” Recently in Wormley v. Tex.Cr. According the clerk’s file marks there- App., the State introduced court, written charge of the placed confession which him in objections charge, verdict possession recently property stolen guilty, punish- on the issue of exonerated him the punishment ment and the verdict it The reason all filed with the clerk at the time. same exonerated him the burglary that it do I find in the not place him at another at the time “he the offense was committed and showed that participated in the the safe.” he did not participate in the exactly what the State Wormley State, Tex.Cr.App., 366 S. v. case at bar. Wormley, supra, authority is by appellant, points out W.2d cited authorizing the reversal of this conviction. ex may completely that a confession burglary but culpatory as to the offense of Because the Court to give failed inculpatory property toas taken requested charge statements, on exculpatory premises. from the is reversed and the cause remanded. portion As I read state, it the theft insofar as
WOODLEY, Presiding Judge (dissent- nothing If safe is concerned. so was ing). of guilt more than a denial and cast no The “explicit objections” referred to in additional burden on state. the majority opinion are set para- out in graph appellant contends, 6 objections to Bird’s trial all was not court’s filed November 7, jury 12:33 P.M. thereby. that the state bound Trevenio objects “Defendant to the failure of the 1162; 48 87 v. Tex.Cr.R. S.W. court’s charge to instruct Tex.Cr.R. Anderson the State is 847; Dixon S.W. testimony of the defendant in the Bird 328; 584,83 1 Branch’s Ann.P.C.2d the State in evidence 104, in this trial and to instruct the the exculpatory respectfully I must be dissent.