Wood v. State

300 State, State, Henry su- supra; v. drinks, re- more v. they had some where 86, State, pra; Tex.Cr.R. Privett v. 123 57 apartment discovered sister’s

turning to his Youngblood (1933); v. He re- S.W.2d calling his sister. the deceased 465, (1932). 121 Tex.Cr.R. 50 S.W.2d the deceased his sister revealed lated that 919, Lucky See also home, sus- but she going told her (Tex.Cr.App.1973); Monroe v. woman another pected going to see (Tex.Cr.App.1973). and, so, with S.W.2d then her romance if this was to Appellant agreed over. him would be Thus, we agree cannot under the circum- Sylvia around to see Turner drive her and harm- stances that error was rendered lo- They the deceased. they locate if could less murder without because the issue of car followed his the deceased and cated in- malice issue was raised. The the Inn of Golden parking lot of deed raised. talking West, he was observed where disposition In our we of the case lot he left As the deceased woman. appellant’s need not consider further com- vehicle, appellant’s near the stopped his car erred, despite plaint his court and, appellant, de- according to the objection, apply failing the law to the open cursing jerked up ceased walked 1257c, required by facts as Ver- appellant’s car. door of the driver’s non’s Ann.P.C. with some appellant’s arm then struck bleed, incited fear causing it object, trial, In if the the event of another stepped Appellant then appellant. presented, same circumstances are the deceased. and stabbed the car hearsay sister statement of in his put sister helped then deceasd hospital af made to officer at the she drive deceased own car so could ter the deceased’s and in the absence death by tes- hospital. further shown It was be admitted. should not immediately Sylvia timony of Turner that very emo- killing appellant was after judgment is reversed and the cause crying. tional and was remanded. State, 132 Tex.Cr.R. In Elsmore wrote: this (1937),

104 S.W.2d 493

“ . . It is from the stat- . obvious when the

utes herein referred to

testimony agitated shows excited killing caused

mind at the time Appellant, WOOD, Mark Allen deceased, is en- an act the accused of whether titled to have the matter killing under the immedi- was committed Texas, Appellee. The STATE of arising passion ate influence of sudden No. 48510. adequate to the from an cause submitted their determination under Appeals of Texas. Court of Criminal appropriate from the court. instruction 6, 1974. Nov. p. ...” 495. S.W.2d Rehearing Denied Nov. In McGee S.W.2d this (Tex.Cr.App.1971), court observed

that in most cases where had been there charge on murder

reversal for failure to

without there evidence of im- malice which en-

mediate acts deceased

raged Els- the mind of the accused. See Maloney

Robert B. Loving, and David L. III, Dallas, appellant. Wade,

Henry Atty. Dist. and W. T. Westmoreland, Jr., Atty., Dal- Asst. Dist. las, Vollers, Austin, D. Atty., State’s Jim for the State. OPINION ONION, Presiding Judge. appeal

This is taken from a conviction malice, with murder wherein the punishment imprison- assessed at life ment.

Initially, appellant contends trial in arraigning pres- court erred him in the ence of timely objection. over State, In Minafee v. S.W.2d this (Tex.Cr.App.1972), court said: practice delaying “The arraignment conducting such proceedings jury’s presence should not be condoned. Trial judges should be avoid careful to practice.” such Boykin also v. See State, 487 128 (Tex.Cr.App. S.W.2d State, 1972); Winkle v. S.W.2d (T App. 1974). ex. Cr. court, however,

This has re refused showing verse there has where been no arraignment actually that the conduct presence Thompson ed in jury, of the State, (Tex.Cr.App. v. 447 S.W.2d 920 1969), objection where there was no improper procedure, made to such Stewart State, (Tex.Cr.App. v. 473 S.W.2d 495 State, 1971); Roberts 493 S.W.2d State, (Tex.Cr.App.1973); Willis v. (Tex.Cr.App. 1973); S.W.2d 170 Winkle (Tex.Cr.App.1973); S.W.2d 170 Winkle supra. And on occasion we totality reversible error when no in of the circumstances was considered guilt court’s instructions at the cluding the stage the trial that the indictment was instruction to the effect that the indictment guilt. psy- evidence of Minafee v. su can guilt is no evidence of remove pra. repetition Cf. Gonzales v. 500 S.W. chological effect ' 2d 154 (Tex.Cr.App.1973). jury. Appellant that this court will charges however, why, trial some Just in the man- parently tolerate extreme judges persist practice this condemned so arraignment in which is conducted ner difficult Arraignment to understand. only that the matter will continue a part by jury, Boening trial each trial within whim of individual (Tex.Cr.App. disclaim, for readily "This there judge. we 1967), proceedings and is one of the many manner may instances where hearing. be disposed pre-trial can jury’s arraignment See Article Ann.C.C.P. rights may prejudice the of the accused. purpose The the arraignment of is to read accused, plea indictment to the hear his In instant case the indict the while 26.02, identity, thereto fix his and Article presence ment in of the was read twice the Ann.C.C.P., usually is the Vernon’s and it plea jury, the time was entered each “not point proceedings in the criminal at which guilty,” and record not reflect the does the trial court if the accused determines etc., any remarks, that extended were made appointment has and if counsel of counsel prejudiced appellant, might the Therefore, arraign necessary. is unless particularly light in of the court’s subse waived, judges ment is most careful trial quent the that the in jury instruction to every arraignment make effort see that guilt. dictment no evidence Con early possi in proceedings occurs as the circumstances, totality sidering of the ble. no is reversible error shown. very purpose arraignment The has al- ready been served instances when most practice arraignment arraignment both delayed until after is, however, jury’s presence again con ready sides trial on have announced permitted demned and re should be jury the merits and a and has been selected gardless plea.1 of the delayed, it arraignment sworn. is so When challenges Appellant sufficiency usually an or an and oversight omission his evidence to sustain conviction. performed merely then is because the stat- midnight reflects record that near 26.01, ute (Article Ann.C.C.P.) 3, 1972, April Palich of Officer John requires justification the same. This is no Department, Mesquite Police while on conducting arraignment in the alone, patrol dispatch heard a con- radio jury. any inad- cerning “attempted burglary” etc., in inquiry, vertent remark or innocent by three flight area and from the scene easily jury’s hearing might become males. He later learned that one white basis mistrial. for a apprehended. par- the three had area for ticipated search of the In the instant contends case 26.01, escaped. did who At the time he (Article and those had arraignment supra) any been sto- be- not know had reading the indictment whether items second later, requirements satisfy about a.m. fore the len. Several hours alone, Palich, Ann.C.C.P., repeti- still April Officer tiously presumption of inno- Fairlane automobile chips at the observed 1963 Ford Hyde stop run a at the intersection sign cence. He contends that “form” arraignment judge guilty,” trial indi if it In the instant case the but was “not place jury’s practice arraign hearing. his outside cated took it was hearing plea “guilty,” jury’s if the Park County, 30 in pocket Interstate Dallas blouse and eight-tenths of a mile from the scene of three rolls coins and a number of the attempted burglary. He stopped the totaling loose ra- bills then $108.00. vehicle for the traffic violation and discov- began dioed for assistance ered occupied the same by automobile, finding two white Ford a .45 caliber males operated was being by pistol ap- Russell seat driver’s Tores, produced operator’s Glen who li- peared recently, his have been fired cense. pistol found a caliber in a well .22 revolver passenger passenger between the seat and The appellant was a sit- passenger Wood searching the door. As Palich was Officer ting in the front During seat. the course arrived, DeLord Officer Ron Tores, of the conversation with their warned the arrested twosome flashlight observed of his placed them rights, handcuffed them appeared the appellant having diffi- took Palich’s vehicle. Palich culty keeping open2 eyes he formed jail. them to opinion was under remained the Ford to await DeLord with influence of drugs. alcohol or a tow As waited arrival of truck. pellant produce unable to identifi- approached by a male in auto- white request, although cation at the officer’s with mobile. As a result of a conversation quickly voluntarily interjected Tores such went to motorist DeLord a Texaco that appellant operator’s li- the lost his had away feet service station located about 100 day. cense re- preceding the The officer standing open register and found the cash quested appellant get the ve- the out of and a small metal file box overturned card hicle, did, po- he he which and walked to a bays the he desk. In one the service of police sition near the the front of vehicle. deceased, George Youngblood, found the unkempt jacket- Army He was had on position semi-sitting bleeding a from type waist blouse which extended below his pulse. wounds in the head. There was no appeared and still al- to be intoxicated on An knew ambulance was called. DeLord cohol observed drugs. or Officer Palich the was deceased service station attendant that move- appellant the aware of his was before, alive and he well 30 minutes for placed his hands on ments when he his had the at time. talked with attendant explained did pistol, he he service which safety very danger- his “is a for own as it Subsequent investigation revealed Tores’ alighting from time ous when file fingerprints on the metal box and two the traffic situation vehicle spent cartridge .45 caliber cases testi- night.” time of re- bay. service A .45 bullet was caliber Army appellant’s type blouse fied that head, it the and moved from deceased’s officer hung so the thighs down to his fired such had been was determined bullet deter- could not his waistband to observe pistol the recovered in by .45 caliber and he appellant armed mine if was prints, and search of the Ford. The shells his appellant weapons for searched the bullet received into evidence. were protection. own was autopsy The revealed that death appellant place Palich had the Officer wound by to the head. One caused wounds patted and his hands on pistol by the said .45 caliber was inflicted pocket down, what in one feeling him no wound bul- from the other smaller “through He a knife. as it was the handle of let recovered seemed to be through” wound. left the lower from the same removed guttural suppress uli tones of hearing or less in answered more motion On the uh.” liuh huh testified evidence he speech and that slurred “somewhat stop wife, sign. automobile run a who a Ford The service station owner’s stopped a result testified the vehicle as bookkeeper, testified he acted as $108.17 violation, station, right as had a to do. and she made of such he missing from 6701d, 91A, 153, Secs. positive of the two rolls See identification examining operator’s the Ann.C.S. appellant, While pennies taken Tores, of the driver he which license observed writing on them rolls had some appearance flashlight his peared scores. be domino appellant, vehicle, passenger testimony, and appellant offered no The appeared who under influence of principals on the law charged the court appellant’s speech drugs. alcohol evidence. and circumstantial and he was slurred had identification. driver, concerned, apparently quickly clearly suf the evidence deemWe explanation appellant offered the had sustain the conviction. ficient to previous day. his lost driver’s license appellant grounds get of error com- In two was asked to out of the plains car, did, the admission into evidence he was still when his as person, opinion found on well he was under the influence $108.00 pistol drugs.3 Appellant admission of the .45 caliber alcohol or wear all .22 contends that ing length Army jacket, caliber revolver. He a thigh and the items a result of these were found as officer could not see if see his waistline to illegal search and seizure violation he was armed. The officer observed the to the United Fourth Amendment appellant carefully his watching move I, 9 of and Article ments, Constitution Sec. safety States and for own Constitution, Ann.St. patted State down circumstances thought felt handle what relating the search The record knife. removed the same it as well as developed was not seizure wrapped three rolls coins and a been, might always increases totaling number of loose bills $108.00 appellate burden jacket pocket. stuffed He then ra into a presented. error passing on the grounds for and then looked dioed assistance under State, (Tex. Cf. v. 508 836 Keah S.W.2d seat of the a the driver’s Ford and found Cr.App.1974). does The record reflect pistol caliber and then a .22 .45 discovered Palich, following: night patrol Officer passenger’s near the caliber revolver seat. alone, participated ques had date in on the tion in the search for two white males who Fourth Amendment has been The attempted had an fled from the scene of policeman require not a who lacks held to burglary possible burglary. a far as or As necessary precise a level information knéw, Palich one had checked out simply probable arrest cause to to for entry if had building involved to determine crime to oc shrug shoulders and allow been made or if had been stolen. anything escape. Adams v. a cur or criminal to eight-tenths a. of a mile About 3 m. 1921, Williams, 143, 32 92 S.Ct. 407 U.S. attempted possible from the scene of the short burglary, (1972). officer observed driver 612 Circumstances L.Ed.2d by 326, proscribed State, 3. is Article 160 268 Public drunkenness Rent v. Tex.Cr.R. S.W. Ann.P.C., high (1954) ; State, 477, King 166 Tex.Cr.R. and streets and 2d v. 674 public places. (1958) ways 231, ; v. held be 312 Johnson been to S.W.2d 501 v. (Tex.Cr.App. (Tex.Cr.App.1965) ; Floyd State, State, 441 488 S.W.2d 830 S.W.2d 397 v. (Tex.Cr. 379, State, 1972) ; 416 S.W.2d 826 Walker 171 Tex.Cr.R. Chamber v. Further, (1961). App.1967). well it is 350 S.W.2d 561 right 725c, peace Ann.P.C. has the that a officer established per- time, prohibited 1925, a make a arrest of one effect to warrantless being public place. narcotic influence of in a Cook v. son intoxicated ; (1951) drugs. 580, 238 200 155 Tex.Cr.R. S.W.2d 306 probable may justify physical cause arrest harm.” v. See also Lewis

temporary investigation detention for 502 (Tex.Cr.App.1973). S.W.2d 699 Baity questioning. v. denied, (Tex.Cr.App.1970), cert. record the instant case evi 918, 91 L.Ed.2d U.S. S.Ct. peace officer, dences action of who Thus, reliability neither tests demanded in the course investigation of an had to probable showing showing cause nor quick make a decision the scene as to probable required justify is to cause protect-himself how to and took limited investigative stop. United v. Roller States steps do to so. The facts detailed reflect son, (5th 1974). A F.2d 1209 Cir. reasonably prudent that a man would have stop suspicious brief of a individual or in believing warranted identity der to determine his maintain presented was armed and a threat to the quo momentarily obtaining status while safety officer’s while investigating sus may information be reasonable in

more picious behavior described. Keah Cf. light of facts to the officer at the known State, supra. strictly cir search was Williams, supra. Adams time. justified exigencies cumscribed which Ohio, Terry

its initiation. supra. purpose of a limited search investigatory stop after is to discover In this is connection ob crime, peace evidence of but to allow the served that occupant an automobile pursue investigation officer to without fear just subject stop is to a reasonable long violence. So as the officer enti pedestrian. reasonable as is frisk stop has tled make forcible reason Williams, supra. Adams v. It is observed suspect to believe that armed search dangerous, may conduct a down,” “pat limited ato limited such pur weapons scope limited in to the money search revealed the described after pose pursue enabling in felt be what believed to fear vestigation without of violence. Ad handle of a thus ob knife. evidence Such Williams, supra. ams v. United States v. tained clearly admissible. The officer 1973). Mulligan, 488 F.2d 732 Cir. (9th then searched under the the Ford seats of automobile, appeared within Terry first Much of this was stated four or six feet from the and his Ohio, U.S. S.Ct. L.Ed.2d companion. The record does not reflect (1968), when United States Su- explorato that the same general was a preme Court wrote: search, ry but one to a limited search for facts, these we “In view of weapons protection. cannot for the officer’s to the blind ourselves need law en- police may po area which search protect weapons forcement officers to themselves tential in frisk situations is the prospective other of and victims violence same that as area which may they may proba- in situations where lack search making when a search a incident to arrest, cause for an arrest. an offi- ble When lawful and is the area within justified believing is in that the indi- lunge, grasp cer or the reach sus suspicious pect suspects. whose behavior he is vidual or Williams v. 204, investigating (Maryland at close is armed and range Md.App. A.2d 593 presently dangerous Special Appeals 1973). to or to Court Com — others, California, appear clearly pare 752, it would to be un- Chimel U.S. deny power reasonable to (1969) S.Ct. L.Ed.2d 685 involv necessary ing scope to take measures to determine of search incident to arrest. We carrying produced whether the is fact a which conclude weapon valid, neutralize the threat of was guns and to thus and the same ad was a comment on constituted such definition difficult would be It in evidence. missible objected the evidence. appel weight search of the officer’s say to that charge reads as follows: car for person and search lant’s pre protection and to weapons for his own with ref- are further instructed “You under the escape unreasonable vent were used ‘presence’ as erence to the word circumstances. that principals on charge above we described the circumstances princi- Under ‘presence’ the law of term there was whether need not decide present at the pals persons relating to appel- of the the arrest probable cause for another an offense commission of being or for public drunkenness being lant for with or not refer to does contact drugs other, or whether under the influence of the immediate 14.- of Article provisions arrest under the vicinity is immediate sufficient.” that Ann.C.C.P.,4 justified, Lopez that Appellant concedes such ar- incident to the search and whether (1960), S.W.2d 906 170 Tex.Cr.R. arrests was valid. rest or charge,5 authority but for the court’s Murphy heavily upon Appellant relies Lopez a confes- there was contends that (Tex.Cr.App.1964). Lopez present sion showed its facts.. distinguishable Murphy vicinity when the de- the immediate passenger in a There, defendant argues the use killed. that ceased was stopped a result which had vicinity” to de- “immediate the words pulled from traffic violation on the “presence” fine was a comment to a respond the car after she failed evidence, in of Ar- violation weight of the request get question and a out urges Ann.C.C.P. ticle car pulled car. After she was from appel- merely shows the evidence purse her later her was taken from nearby “imme- or in the lant was arrested police station search of the same at the the de- vicinity” where station diate posses- drugs, revealed dangerous nothing to show ceased found for. sion she convicted of which com- offense was was when the where tes- relied the officer’s State theory that the He advances mitted. drunk timony that the defendant was overempha- vicinity” use “immediate for such of- he had arrested her arrest, location sized the thereto, but fense and searched incident arrest essentially told this had formed show the was sufficient to near the station opinion based on obser- as to drunkenness the of- appellant’s presence the scene of car pulled vations after she was speculate in a fense, inviting In the instant under arrest. placed case. circumstantial evidence opinion the case the officer formed the very careful agree. After do not We alcohol pellant the influence of was under prin- the law of and detailed instruction car and got drugs before he out “presence” as cipals, did define the court prior the car and again got out after above, added but the court also forth set person. of his “pat down” following: the ‘pres- the term Next, appellant contends the court “In connection with that the you further instructed objection are erred in written ence’ overruling at a defendant “presence,” urging presence defining mere Ann.C.C.P., pro- threaten, 14.03, commit some of- are about to 4. Vernon's Article against the laws.” fense vides : “Any peace may arrest, without officer places suspicious warrant, persons 5. Tex.Cr.R. Hill See reasonably (1938) ; Garza 121 S.W.2d circumstances (1946). persons guilty 194 S.W.2d Tex.Cr.R. that such show peace, felony some or breach jail, alleged offense would not there was no better reason to search the scene of an principal but in addition car than the car in the him a Wilson case constitute alleged reasoning safety presence at the scene of an that was for to his set requirements the officer. offense all of the other word in the definition out above makes a after a When officer search ‘principal’ must under the facts exist arrest, legal he decreases the chances that such the case in order to warrant legality being harmed. The of the search jury principal, if the defendant is a depend merely upon offi- not should as to should have a reasonable doubt possibly cer’s statement that he was in a any requirements the said existence of dangerous situation. In the case Wilson him constitute above order to set out testimony that there was no principal should find then might That was afraid that he be harmed. principal.” is not a the defendant ground that the case was reversed on illegal. present do case the charge In as a whole we search was In the testified, overruling very dangerous “It is not the court erred conclude charge. objection time when a alighting written at situation that time Vernon’s Ann.C.C.P. traffic See knowledge, night.” is common but This judgment is affirmed. because case was reversed Wilson testimony about this obvious

there was no ODOM, in the J., fact, concurs result. it should be overruled. See opinions in su-

dissenting Wilson v. says it is a pra. fact that one DOUGLAS, Judge (concurring). dangerous in one case and of- situation I in the result reached that the concur say case does so ficer in another arraignment between an should not be difference under the of this case is circumstances a reversal. The Wilson affirmance and harmless error. case should be overruled. concerning reached result the search of the automobile correct.

However, car it should be noted stopped because a traffic offense passenger outside the search was

the automobile when made. 531, this In Wilson INC., WEINGARTEN, Appellant, Court, majority opinion, that a J. held after the arrest of search of automobile was unau- the driver for a traffic offense Appellee. OBIEDIO, Delfina made though even the accused had thorized 16312. No. con- gesture toward the location of the dis- traband before he was arrested. The Texas, Appeals of Civil Court of this case and the Wilson tinction between Dist.). (1st Houston arrest has been case is too fine. When an Oct. made, protection an officer for his own Rehearing Denied Motion on Second right make the have the should 14, 1974. Nov. night. arrest if it was a traffic even case, driver, present In the passenger were outside

and the other If the officer

car when it was searched. appellant and the

planned to take others

Case Details

Case Name: Wood v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Nov 6, 1974

Citation: 515 S.W.2d 300

Docket Number: 48510

Court Abbreviation: Tex. Crim. App.