Thomas v. State

451 S.W.2d 907

Tex. Crim. App.

1970

Check Treatment

Walter THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 41962.

Court of Criminal Appeals of Texas.

Feb. 11, 1970.

cers and other officers in plain clothes approached the apartment with one of the officers carrying a shotgun at port arms. The invitation to enter by Durden, under these circumstances, was certainly not a voluntary consent to search. Upon entering the apartment the officers found nine individuals, four of them being the suspects sought. In what room or exactly where these individuals were in the apartment at the time of their arrest or the area in which they could reach does not appear from the record. The size of the one bedroom apartment is not clear from the record. A careful reading thereof reflects references to a bathroom, one bedroom and a bed in the dining room next to the kitchen. Whether there was a living room or other rooms is not revealed by the record, but it does not appear from the evidence that it was a very large one bedroom apartment. The length of the search is not reflected by the record, but we do note that the arrests occurred at approximately 3:00 p. m. or 3:15 p. m. and the appellant was taken downtown at 3:30 p. m. and was before a magistrate at approximately 4:30 p. m. which was prior to the lineup. As to a development of the facts, it must be remembered that when this trial was conducted neither the court nor the attorneys had the benefit of the Chimel decision.

“Under the law before Chimel the validity of a search incident to a valid arrest depended on the reasonableness of the search in the totality of the circumstances. See

United States v. Rabinowitz and .” .

The case at bar is similar to

Harris, which involved the search of a four room apartment. There the Court said, “The area which reasonably may be subjected to search is not to be determined by the fortuitous circumstance that the arrest took place in the living room as contrasted to some other room of the apartment.” .

The search in question does not appear to be more extensive than was reasonable under the circumstances. The items searched for and seized related to the criminal operation for which the arrest had been made.

Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 and can be distinguished. Here the search was contemporaneous with the arrest and was confined to the house where the arrest occurred. Shipley was arrested outside his home and a second search of his house followed. The Court stated the search was not confined to the immediate vicinity of the arrest. In Von Cleef one of the defendants was arrested on the third floor of a 16 room house and for a period of 3 hours officers combed and searched the entire house carting away several thousand papers, publications and other items.

For these reasons, I would hold the search in question reasonable and that the trial court did not err in admitting evidence uncovered in the search. I concur.

Stewart Frazier, Dallas, for appellant.

Henry Wade, Dist. Atty., Malcolm Dade, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State‘s Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for robbery by assault; the punishment, ninety-nine years.

This is a companion case with

Thornton v. State, 451 S.W.2d 898 and .

In the first ground of error, appellant contends that reversible error was committed when he was brought before the jury panel in white overalls.

The record reflects that appellant appeared before the jury panel for approximately thirty minutes during the voir dire examination in prison overalls. He preferred to wear the jail clothing, because he thought his regular clothes were too dirty; the court insisted that appellant wear street clothes, and he did so during the remainder of the voir dire examination and during the trial.

There is no showing of any injury or prejudice to appellant. In the absence of such showing, no reversible error is presented.

Wilkinson v. State, Tex.Cr. App., 423 S.W.2d 311, and .

Appellant‘s second, fifth, sixth, seventh, eleventh and thirteenth grounds of error pertaining to severance, the lineup, the introduction of testimony seized without a search warrant and the remark of the prosecuting attorney were overruled in Thornton v. State, supra.

All of these grounds of error are overruled.

In addition to the motion for severance in the second ground of error, appellant contends that his attorney did not have time to prepare for trial.

The record reflects that counsel was appointed to represent appellant on February 29, 1968, and the trial started April 17, 1968. Appellant‘s counsel had more than the ten days allowed under Article 26.04, Vernon‘s Ann.C.C.P., to prepare for trial. No prejudice is shown the appellant. This contention is overruled.

In the third ground of error, it is contended that the trial court erred in granting the State‘s motion to strike from the indictment the words “and then and there, by using and exhibiting a firearm, to wit: a gun.” It is contended that this is a matter of substance under Article 28.10, V.A.C.C.P., and cannot be amended.

The court did permit the State to strike the firearm part of the indictment. No objection was made to the action of the court. In

Ex parte Layman, 140 Tex.Cr.R. 531, 146 S.W.2d 405, this Court held that where an indictment charged ordinary robbery and then averred the use of a firearm, the State could abandon the charge of robbery with a firearm, and a conviction for ordinary robbery would be valid notwithstanding evidence may have shown that in fact a firearm was used. See . No error is shown. The third ground of error is overruled.

In the fourth ground of error, appellant contends that the indictment does not allege by what means or method an assault was made upon Thomas E. Johnson, or what means was used to make him fearful of his life or bodily injury, and that the indictment was confusing and repugnant and did not set forth in plain and intelligible words and in direct and certain and positive manner the elements of the offense charged.

An indictment in substantially the same form was approved by this Court in

Hunter v. State, 119 Tex.Cr.R. 558, 45 S.W.2d 969, and in . See 5 Branch‘s Ann.P.C.2d, Sec. 2566. The indictment is sufficient; the fourth ground of error is overruled.

In the eighth ground of error, it is contended that the trial court erred in refusing to strike the testimony of Gerald Lamb because he had previously stated that he thought that there were four assailants when he and Johnson were awakened that night. He testified that there were only three assailants. Other instances which appellant considered to be inconsistencies were pointed out to the court.

The jury passes upon the credibility of the witnesses, the weight to be given their testimony, and is the exclusive judge of the facts proved. Article 38.04, V.A.C.C.P. In

Tice v. State, Tex. Cr.App., 425 S.W.2d 824, this Court held that the fact that an injured party had made prior inconsistent statements did not destroy his testimony given at the trial, but only affected the weight to be given his testimony and his credibility as a witness. See . The court did not err in refusing to strike the testimony of the witness Lamb.

In the ninth ground of error, it is contended that error was committed when the State was permitted to ask leading questions. It does not state which witness was testifying, what testimony was given or what questions were asked, neither the questions nor answers are set out.

This does not comply with Article 40.09, Sec. 9, V.A.C.C.P., which provides, in part:

“[T]his brief shall set forth separately each ground of error of which defendant desires to complain on appeal and may set forth such arguments as he deems appropriate. Each ground of error shall briefly refer to that part of the ruling of the trial court, charge given to the jury, or charge refused, admission or rejection of evidence or other proceedings which are designated to be complained of in such way as that the point of objection can be clearly identified and understood by the court. * * *”

See

Keel v. State, Tex.Cr.App., 434 S.W. 2d 687; ; ; and , and .

The ninth ground of error is overruled.

In the tenth ground of error, it is contended that the prosecutor displayed past criminal records of appellant‘s at the guilt stage of the trial.

There is no showing that the jury saw the records or knew the past criminal record of appellant. The tenth ground of error is overruled.

The twelfth ground of error is as follows:

“This appears in the Statement of Facts, at page 284, line 24, wherein the court holds that a witness called for the defendants would not be permitted to testify for the limited purpose only.”

This is not sufficient to call to the trial court‘s attention the matter about which he complains and does not comply with Article 40.09, Sec. 9, supra, discussed in ground of error number nine.

In the last ground of error, it is contended that the court erred in allowing the prosecutor to encourage the complaining witness Johnson to use unnecessary, vile and profane language of the defendant Lampkin.

There is no objection to any of this testimony. These were some of the statements made by one of the defendants during the robbery and the abduction of the complaining witnesses and were res gestae of the offense. No error is shown. The ground of error is overruled.

The judgment is affirmed.