*1 arbitrary violative Fourteenth States Consti Amendment of United many
tution is as it has been in overruled cases, g. Willoughby e. Tex.Cr.
App., 481
Likewise,
complaint
punishment
years is
of four
cruel
un
usual is overruled.
Cook
Tex.Cr.
421;
App., 467 S.W.2d
Parson v.
Tex.Cr.App.,
No error is judgment shown. The is af- firmed. Appellant, O’DONALD,
Frankie Texas, Appellee. The STATE of No. 45938. Appeals Court of Criminal of Texas. April 4, 1973. 1. The clerk is to be photocopies commended for the Court because some of the preparation illegible of an excellent record. One docket sheets are some cases. separate volume contains the indictment and other A volume contains the evidence. separate they instruments filed with the clerk. It con The briefs are as be. should neatly typed tains docket sheet entries Tex.Or.App., See Zambrano regular legal paper. sized This aids S.W.2d 500.
585
the commission
the accused with
Fair-
nect
McCarthy, Charles W.
George S.
an
Merely showing
offense
Amarillo,
Carnahan,
for
offense.
weather, Robert
v.
sufficient. Odom
not
occurred is
appellant.
912;
State, Tex.Cr.App.,
Ed-
438 S.W.2d
Dowlen, Canyon,
D. Voll-
George E.
Jim
State,
S.W.2d
Tex.Cr.App., 427
wards v.
ers,
Huttash,
Atty.,
Robert A.
and
State’s
testimony need
The corroborative
Austin,
Atty.,
for the
Asst.
State.
State’s
evidence;
only
it must
supply direct
not
the crime.
with
to connect
tend
State, Tex.Cr.App., 472 S.W.2d
v.
OPINION
Cherb
combined cumulative
It
is
DALLY, Commissioner.
by
weight
furnished
of the evidence
supplies
non-accomplice
which
witnesses
theft;
felony
The
is for
conviction
State, 108 Tex.Cr.R.
Minor v.
the test.
punishment
years imprisonment.
six
1,299
422.”
S.W.
charged
The
theft
with the
State,
v.
186
Bolding
See also
S.W.2d
493
Lusk,
sorghum”
“grain
from Bruce
State,
Reynolds v.
489
(Tex.Cr.App.1973);
manager
County
of the Randall
Feed Yard.
Windham
(Tex.Cr.App.1972);
866
S.W.2d
appellant urges
State,
the evidence
(Tex.Cr.App.
319
479 S.W.2d
will
State,
not sustain the
it is
conviction because
656
Chapman v.
470 S.W.2d
1972);
upon
accomplice
based
of an
testimony
468
(Tex.Cr.App.1971); Minton v.
sufficiently
is
witness which
not
corrobo-
(Tex.Cr.App.1971);
426
Odom
S.W.2d
rated.
(Tex.Cr.App.1969)
912
438 S.W.2d
629
and Edwards
38.14,
pro-
Article
Vernon’s Ann.C.C.P.
(Tex.Cr.App.1968).
vides :
“A
upon
conviction cannot be had
The corroborative evidence is not
accomplice
testimony of an
unless cor-
merely
sufficient
is
because there
other ev
roborated
tending
other
to
evidence
idence which
with numerous de
coincides
connect the defendant with the offense
tails
witness’
committed; and
the corroboration is
that corroborative
tends
unless
evidence
merely
sufficient if it
the commis-
shows
defendant with
offense
sion of the offense.”
charged.
readily
State
admits that the witness
Let us now consider the
other
participated
who testified he
in
than
to de-
witness
the alleged
theft of the
is an accom-
termine
it tends to connect the
plice as a
matter
law.
alleged.
with the offense
The well known
determining
test for
Lusk,
Bruce
manager
evidence required
support
a conviction
complainant
Feed
and
Yard
in addition to the testimony of an accom
indictment,
in the
named
testified to the
plice
recently
witness has
been
in
stated
following
sixty-five
facts. Between
thou-
Colunga
(Tex.
“The test of the sufficiency of such Approximately one million corroboration is to eliminate the evi- pounds of day feed are used each dence of the accomplice from considera- is storage capacity approxi- there tion and then to examine the evidence of mately pounds. five million in- The basic other witnesses to determine if is there gredient of the ration fed is sor- inculpatory evidence, evidence of in- an ghum. palatable To make feed more criminating nature which tends to con- in the moisture form of steam added well got its volume did not ask the This also increases where he feed. differ- weight. The feed is stored in equipment will types where the ent of bins shop Lew Wixom foreman and “lease pounds of hundred thousand handle one Ryder man” Agency for the Truck Rental twenty-five A truck can grain in minutes. Amarillo, (tractor-trailer rented a truck *3 twenty in minutes. be loaded or unloaded combination) appellant to the on December equip- the knowledge of the use of Some 1, Hindon, 1970. Dave a transient rental key necessary for the load- ment and a for same agency clerk rental in Ama- the ing unloading grain. and rillo, testified by the truck was the returned appellant 2, copy on December A 1970. of appellant as a former identified the Lusk the rental contract was introduced into evi- appellant yard. The employee of the feed stamped dence. The time on the contract alleged employed at the time of the was appellant reflected that received the duty on the but not scheduled for theft was m., p. 1, truck at 11:24 December and re- alleged to oc- night that the theft have was m., 2, turned it at 9:09 a. December appellant not entrusted was curred. sixty The truck had been driven miles. grain key necessary to move the with a explained that loading equipment. Lusk Roy Tinsley, deputy a sheriff of Randall han- large quantity of feed because of the County, appellant testified he saw the moisture, dled, other adding and of O’Donald, Wiley Hudg- Hubert and Mack factors, it difficult to determine was in ins the offices of the “Consumers Ele- that he He said losses were sustained. vator” on the morning 2, of December prove by inventory the loss of not an could Tinsley 1970.1 engaged in conversation he any grain. cross-examination Under with the deputy who told the he instance I do not know testified, “In this selling was grain a load of had come that any Lusk did not grain was taken.” from his farm. The officer who witnessed report en- any grain the theft of to law grain being unloaded didn’t said he personnel, deputy sheriff forcement but a grain know where the came from but testi- might be suggested to him that he had not, fied that it did appel- come from the taken, grain. grain missing some If was lant’s farm “it because was too much and appel- give his consent to the did not Lusk maize,” this a bright type nice of not anyone taking for the lant nor else type of appellant’s raised on the farm. Johnston,
L. S.
the sheriff of Randall
Caldwell,
December
County,
Robert
who on
testified he traced a certain route
manager of the “Consumers
Ryder
was the
from the
Agency
Truck Rental
in
Association,”
in
grain
a
elevator Can-
Fuel
Amarillo to the
Feed
Yard,
work
yon,
that when he came to
testified
Elevator,
Consumers
back to
and
“Ryder” truck
morning there
was a
agency
truck rental
and found it to be
sixty-one and four
miles.
grain at the elevator. Soon
tenths
loaded with
appellant came
arrived the
after Caldwell
Now we will consider the
of
accompanied by two
to the office. He was
accomplice
Hudgins.
witness
It was as
men,
the witness later
one of whom
other
employed
follows: He had been
at
Wiley. Cald-
Hubert
heard introduced as
Randall County
approxi-
Feed Yard for
seventy-five thousand
purchased the
well
mately twenty months. At the time he
fifteen hundred
pound
of
load
yard
went to work at the feed
he met the
payable
A
dollars.
check
already employed
who was
there.
Hudgins acknowledged
participation
had been
his
in
which
The check
was issued.
thefts
company,
from the
but said
Cald-
into evidence.
paid was introduced
go
morning
into the office.
stayed
pickup
Hudgins
truck that
and did
in the
he
testified
must be considered
thefts,
Each case
these
charged with
he had not been
an
as to whether
its own facts
time
employed there at the
was still
and
and
facts
has been corroborated
witness
trial.
de
tending
circumstances
evening
in the late
related that
alleged. How
the offense
fendant with
he,
1, 1970,
along with
of December
compari
ever,
may be had from
guidance
Ry-
wives, drove to the
their
Differ
fact situations.
other
sons with
in Amarillo.
Agency
Rental
der Truck
in
facts
each
found
can be
ences
Canyon
in
returned to
Their wives
in
the facts
comparison of
case, but
fair
truck
appellant rented a
automobile.
show that
follow will
which
the cases
by Hudgins
drove
accompanied
corroborative
each of
cases
Although sev-
stronger
than
witness was
*4
two
premises and
lived on the
eral families
case;
be
yet a
resulted
reversal
in this
night,
duty at
employees
assigned to
were
not sufficient
the evidence was
cause
feed
at the
Hudgins
he
no one
said
saw
v.
requirement. Fraley
statutory
meet the
“grain”
with
loaded the truck
yard. They
648,
State,
249
866
S.W.
93 Tex.Cr.R.
“Canyon Eleva-
truck to the
the
drove
State, 120 Tex.Cr.R.
(1923); Dewees
morning Hudgins,
Co-op.” The next
tor
State,
595,
Brown v.
(1932);
that corroborating tends to offense; with concur in I the result reached the ma- is, taking jority that but I on the would reverse sufficien- objec- probation, also testified without admitted steal- ing tion that he and the stole load twelve thousand dollars worth sorghumgrain” of “milo from the from however, 1970, testify, 28, Feed Yard did not on November He soghum Umbarger he sold it to Elevator. he stole the for which on trial. testimony concerning In his whether or granted make he could restitution 588 Lusk, manager
cy of evidence. testify yard, and could not the feed did not any grain was stolen. elementary prosecution that m a It is theft, showing in there must be a that the deprived party was in fact jured By stat thing alleged have been stolen. ute, taking must be a fraudulent shown. Ann.P.C.; cf., Bal Article Vernon’s (Tex.Crim. linger v. 481 S.W.2d State, 95 App.1972); Martin v. Tex.Cr.R. (1923). 254 S.W. *5 BAYLESS, Billy Ray Appellant, Texas, Appellee. The STATE of No. 46021. Appeals Court of Criminal of Texas. Dallas, Halsey, for appellant. S.L. April 11, 1973. Wade, Henry Atty., Dist. T. West- W. Rehearing April 25, Denied Dallas, moreland, Jr., Atty., Dist. Asst. Jim Vollers, Atty., D. Robert A. State’s Huttash, Austin, Atty., Asst. State’s the State.
OPINION
MORRISON, Judge. rape; punishment, offense fifty years. (50) relate
Appellant’s grounds of error four his admissibility to the confession. August Appellant was arrested At a.m. approximately 10:00 at before he was taken about 11:00 a.m. corporation Chamberlain, then a Judge informed testified that he judge, court who against of the accusation him of the nature right his appellant, explained ap- right request his attorney, to an attorney unable if he was pointment anof