*1 In his ground eleventh of error
appellant urges prosecuting that the attor
ney committed reversible error his clos
ing argument punishment stage of said,
the trial when he Cunningham “Mr. therefore, probation, not entitled to
you’ve you had no submitted to for
probation.” Appellant’s objection to the
remark jury sustained and the in disregard prosecutor’s
structed to com
ment. argument, any,
The error above if having
was cured the trial court’s having
the comment withdrawn and
structed disregard it. Ward v. (Tex.Cr.App.1971). ground of error is overruled. jury by its verdict found the
appellant guilty of the offense of conceal
ing property. judgment stolen provide
sentence are therefore reformed to the conviction of for conceal
ing property stolen rather than receiv concealing property. stolen reformed, judgment, is affirmed.
Opinion approved the Court. RUNKLE, Appellant, Niel
Robert Appellee. Texas,
The STATE of
No. 44984. Appeals of
Court of Criminal Texas.
June
Rehearing Denied Oct. *2 the where the road. of Doran, by Haygood ket West Gulley & Murrah bridge a over body was trestle Rio, was located for Gulley, Del upon an built The tracks were a creek. Pettit, Rio, Atty., Del and Dist. F. John which, point, was at this embankment Atty., Vollers, Robert and D. State’s Jim body was feet the road. The to nine above Austin, Huttash, for Atty., A. Asst. State’s road. visible the from the State. top portion of They the discovered heavy black body covered with the OPINION top Lifting the shipping paper. plastic that the they ascertained edge paper, the of ODOM, Judge. rope á and male observed deceased was appeal a for the from conviction his face. on his neck and blood around offense of murder malice. Punish- with by Caffee re- Preliminary investigation ment was assessed the at confine- tracks ballast beside the vealed that the ninety-nine years. ment for a term of disturbed, have been as it would was not passing a body thrown from alleged, all grounds Three of are error notify attempted to train. Caffee sufficiency challenging the of the evidence A._ Sheedy; Kinney County Sheriff John accom- of the corroborate Sheedy learning that Sheriff and plice sufficiency and witness scene, way Caffee already on his charge regarding court’s arrival before investi- awaited sheriff’s witness. gating further. 1970, Lloyd em- April On Mercer was shortly Sheedy thereaf- arrived Sheriff ployed by the Railroad Southern-Pacific Postell, ter, accompanied by Albert proceeding head brakeman on a train east Kinney County. An examina- Coroner for approx- from Del Rio to San Antonio. At the deceased body revealed that tion of imately P.M., watching for ob- while pairs pants, a “tee wearing two track, body along stacles he observed a shirt, coat, shirt”, sport regular a a lying on the north the track at side of determined that also socks. officers approximately seven miles pounds weighed and 160 he between 150 Spofford. The mile body was located at forty-five years approximately and was post seventy-five about feet from 333.48 pocket of the inner watch old. Inside the trestle. body not been when of- pair pants the deceased the worn passed train had five hours twenty bills. Oth- ficers found two dollar wrapped appeared earlier. It in what items were discovered er miscellaneous reported be dark coat. Mercer pockets sport coat. cident to the conductor who alerted local authorities. bridge, on the Fifteen feet west of the approximately
At 10:10 P.M. on that tracks, north side the officers dis- Caffee, evening, same pair glasses an assistant eye a broken covered John special agent the Southern Pacific bloody More dis- wine bottle. blood Railroad, report concerning body. received a sixty-one feet covered finding Casper, bed, large He and A. L. two sheets of In creek railroad, proceeded a road paper master them were re- brown spot to a Spofford 7.22 miles east of six feet of the more covered. Within where, P.M., was found. of the blood-stained of a lying pieces the deceased also discovered officers bottle, proximately n pieces grass three inch feet from the on the wine ties several north Forty cap, side of the ad- rope, bill-type tracks. some letters feet south Key. railroad A. tracks was farm to mar- dressed to one P.M., autop- called,
An ambulance was
and the de-
At 1:30
an
sy
ceased was taken
funeral home in Del
was conducted on the
of the de-
to a
Santos,
home,
ceased
Ruben
Rio. At the funeral
Del Rio Police
Dr.
C.
Chief
County.
Medical Examiner
for Bexar
Koog
Chief
R.
obtained deceased’s fin-
J.
“
opinion,
.
gerprints.
finger- Dr.
.
.
there was
Identification of these
Santos’
question
prints
no
that this man met his death
revealed that
the deceased was
*3
by
by asphyxia,
compression
violence
Key.
Alexander
James
artifact;
by
by rope
neck
some kind of
Caffee, meanwhile, checked the train
something like that.”
schedules and learned that seven trains had
gathered
been
The evidence which had
point
passed the
where deceased had been
Sheedy
by
in
to
this case was sent
Sheriff
day,
having
found on that
three of these
Department
Laboratory
Crime
passed
point
this
after 6 P.M.1 One of
Chemical
Safety
of Public
in Austin.
these,
train,
freight
a west bound
had been
analysis
presence
human
revealed the
stopped
signal
there at 7:10 P.M. due to
rope taken from around
blood on the
problems.
paper
neck,
plastic
deceased’s
on the black
deceased, and on
which had covered the
3, 1970,
April
At
A.M. on
3:30
that train
paper
found near the location
Alpine.
made
stop
an unscheduled
body.
scrapings
box-
taken from the
There,
it was surrounded
law enforce-
car were
be human blood.
also found to
ment officers and searched.
In a blue
bearing
number L
N&
joint
A
returned
indictment was
Highway
Patrolman
Hicks found
Joe
appellant
charging
Franks
them with
and
pellant and
Frederick
Franks.
James
Key.
the murder of
Alexander
officers removed the two men from the
trial,
appellant’s
Franks’ motion
Prior
placed
boxcar and
under
them
arrest. A
granted. The record re-
for severance was
preliminary search of the boxcar was con-
trial,
appellant’-s
a
flects that at the time of
by Deputy
ducted
Mike
Stutts
grant-
motion
as to Franks was
to dismiss
County
Brewster
Found
Sheriff’s Office.
appellant’s trial
testified at
ed. Franks
receipt bearing
in the car were a
the de-
court,
and
declared
name,
piece
pocket knife,
ceased’s
a
jury,
to be an
cardboard, pieces
blood-stained
of a broken
witness as a matter
bottle,
comb,
fingernail clipper,
wine
change.2
and
loose
some
he,
de-
that
testimony reveals
ceased,
appellant
a boxcar
and
boarded
Valentine,
proceeded
The train then
drinking
been
All three had
San Antonio.
Texas,
L N
where boxcar numer & 102468
and deceased
heavily,
appellant
wine
again
was left on a side track and
searched
sleep but
arguing.
Franks went
Ranger
Ranger
Arthur Hill.
Texas
fight occurred
awakened when
was later
spots
Hill discovered blood
on the wall
deceased.
and the
between
spots just
him
out-
and held
grabbed
boxcar and other blood
Franks
the deceased
rope
allegedly placed a
while
were taken at
Scrapings
side of the door.
began to
neck and
the deceased’s
around
place.
each
recovered were some
Also
went
became tired
him. Franks
choke
of a broken
pieces
blood-stained
awoke,
he was
sleep.
he
When
back to
wine bottle.
from an-
men were removed
2. Two other
1. The record reflects that
two westbound
P.M.,
but were
passed
on the train
other
trains
after 6:00
instant case.
held
connection
at
P.M.
one at 7:10 P.M. and one
train
The third train was the eastbound
riding
upon
when he
which Mercer
saw the
case the evidence
the instant
Key was dead. Franks
formed that
body
deceased
(1) the
body in
shows that:
wrapping
appellant in
assisted
at 9:30 P.M.
was found
beside
material, placing
plastic
strangulation;
cause of death
(2) the
stopped, and
train
the tracks when the
at
location
had not
train.
throwing
items off of the
various
day;
on that
at 4:00 P.M.
Ann.C.C.P.,
38.14,
pro-
Article
Vernon’s
stopped
P.
freight
bound
train
:
vides
evening at the
on that
M.
found;
appears
(5) it
deceased’s
be
“A
cannot
conviction
only
was the
that this
unless
date;
beside
(6) the ballast
tending to
roborated
other evidence
place where the
the tracks at the
offense
connect the defendant
disturbed;
was found was not
committed;
corroboration is
and the
Alpine approxi
stopped at
same train was
*4
merely
if
shows
commis-
sufficient
it
later;
(8)
mately eight
sion of the offense.”
that
in a
were found
Franks
time;
samples of human
44,
Recently, in Reynolds
(No.
v. State
boxcar;
receipt
found inside the
5-3-72),
841
court held
that:
in
name
bearing the
was
deceased’s
boxcar;
wine-
side the
determining
sufficiency
“The test for
paper were
glass and bloodstained
bottle
is to eliminate
such corroboration
place
in
boxcar and at the
found both
accomplice
evidence
consid
from
found.
where
eration and
ascertain whether
incriminating na
is other evidence
anof
places appellant in a box-
The evidence
ture which
to connect the accused
tends
had
on the train which
car
E.
with the
commission of
offense.
Ed-
place
the deceased was found.
State, Tex.Cr.App., 481
g. Colunga v.
supra.
State,
Such evidence
wards v.
866;
State, Tex.Cr.
v.
S.W.2d
Cherb
places him
that
State,
273;
App., 472
Thomas v.
S.W.2d
struggle
occurred and in which
which
311;
Wel
166
S.W.2d
Tex.Cr.R.
receipt belonging to the deceased
State,
The mere
Tex.App.
den v.
400.
evidence,
bloody
Physical
such as
found.
showing that an offense
is
occurred
bottles,
and broken wine
Colunga v.
corroboration.
and beside the
both in that boxcar
State,
State, supra;
Tex.Cr.
v.
Odom
912;
State,
App., 438
Edwards v.
S.W.2d
State, supra,
Thus,
Reynolds
unlike
Thus,
Tex.Cr.App.,
such crime committed. hold that We corroborative is suf evidence evidence, there is sufficient circumstantial weight ficient if the of such cumulative testimony accomplice, absent the evidence tends to connect the accused link the accused to the crime.3 requirement the crime. There is no testimony charge regarding the ac The court’s the accom- corroborative link plice’s directly testimony substantially
cused
is
the same
to the crime
be sufficient
guilt.
Reynolds,
approved by
in itself to
g.
establish
E.
that was
this court
also,
State,
supra;
supra.
Cherb v.
Burton v.
See
pass
support
sufficiency
evic
We do
ence to
conviction had the
not testified.
Ann.P.C.2d,
Branch’s
Sec.
No error
“The test
sufficiency
747.1.
as to the
is shown.
corroboration
tois
from
eliminate
con-
sideration
the evidence of the
error,
Finding
judg-
no reversible
witness and then to examine the evi-
ment is affirmed.
dence of other witnesses with the view
to ascertain if there be inculpatory evi-
ONION,
Judge
Presiding
(dissenting).
dence, that
is evidence
character which tends to connect the de-
principal question presented by
commission
fendant
of-
appeal whether
the evidence is sufficient
evidence,
If there is such
fense.
testimony
to corroborate the
the accom-
sufficient; otherwise,
corroboration is
plice witness
Frederick Franks.
is not. Dalrymple
Tex.Cr.App.,
jointly
witness was
indicted with
Bradford v.
appellant,
prior
but
to his
(Em-
Tex.Cr.R.
sufficient if states reflects majority evidence (Emphasis sup- sion offense.’’ that: plied.) found of the deceased was (1) In Edwards (2) P.M. on (Tex.Cr.App.1968), this court said: immunity. acted such offer not court 1. The record is clear whether case, no inde- there was instant strangulation; (3) death was cause of at or pendent the accused proof that not at this location body had been or about the crime at near the scene of day; (4) P.M. on that Cawley v. time of its commission. stopped freight had at 7:10 hound train Cf. 166 Tex.Cr.R. evening on that at the where P.M. found; (1957). (5) it body was the deceased’s only
appears that this was the train testi- witness’ Outside of date; (6) at that long the showing how mony, there is no place the ballast beside the tracks train appellant been on the 50 car not the deceased was found was where stop at Al- when it its unscheduled made disturbed; same from the pine approximately 250 miles Alpine approximately stopped at discovered and where the later; (8) appellant and Franks such eight hours after over time; at that a boxcar were stop. were found samples of human blood receipt boxcar; (10) a bear- possession inside the was not was found in- any the deceased’s name belong shown to items boxcar; clothing wine- any side the nor blood on his was there glass bottle and blood-stained were though his blue examined even shirt was found both boxcar and at There evidence of chemist. was no found.” bruises indi- marks or fight or cate he in a involved possible exception of (8), No. With struggle. samples human blood While carefully considered, when this evidence is and on and found inside of the of- reflects the commission type near body, the blood shown part of ac- fense or is corroborative of was the samples. so as connect the Nor complice story, but it is witness’ type deceased revealed. tending to character connect glass was While broken wine-bottle the accused with the crime. does not position near the *6 required by the test meet glass showing the body, there nowas color or found one was the same ap- As to item No. is true (8), it that found appearance, similar in etc. proximately after train in place. the other question stopped near found, Key’s body nearly Although all the items away, miles and the ac- 250 side or near the boxcar together complice witness were fingerprint examina- were submitted the same boxcar. tion, con- testimony offered no cerning the same. instances, In certain association with the may witness be corroborative performed the who Dr. Santos Ruben accomplice. It has testify long autopsy the de- did not how though held is not time ceased been dead at the corroboration to show that time. body’s discovery or at other together shortly shortly before or aft- er the commission of the offense. 23 nothing C.J. There is outside p. Criminal Law 812(4)(g), appel S. witness to show that § 581, about the at or Tex.Cr.App. Crawford v. 149 lant was with An alleged homicide. See (1946), 575 and other Texas 366, in 23 drews 106 Tex.Cr.R. S. cases cited Criminal Law 812 § C.J.S. supra. (1927). 217W. (4) (g), tes purpose corroborating “For the hu
timony which considered take liberty, something stronger is re
man
quired suspicion.” than mere Almazan v. 432, Tex.Cr.R. (Tex.Cr.App. 1940). State, 166 Tex.Cr.R.
See also Thomas v. (1958). S.W.2d 311 required are
Applying the test we
ply independent evidence of can find I no to connect
an nature commission sufficiently
alleged crime so as to be witness’ testi-
roborative
mony. respectfully
I dissent. Ellis, Dallas,
John Henry Wade, Atty., Dist. Catharine T. Hill, Dallas, Atty., Asst. Dist. D. Jim Vollers, Huttash, Atty., State’s Robert A. Atty., Austin, Asst. State’s for the State. LOCKE, Appellant, Robert Marion OPINION Texas, Appellee. STATE No. 45612. ONION, Presiding Judge. Appeals Court of Criminal of Texas. July appeal This is an order an revok- probation.
Rehearing Denied Oct. *7 25, 1970, September
On plea waived trial and entered a guilty before the court of re- ceiving concealing property stolen punishment or value over. $50 years, imposi- was assessed at five but the suspended tion of sentence was pellant placed subject probation Among certain the conditions conditions. probation requirements “(a) Commit no offense or other state laws of United States.