427 S W 2d 624 At 626

Page 1 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

LEXSEE 427 S.W.2D 624,AT 626 Chester Bass, Appellant v. The State of Texas, Appellee No. 41,055 Court of Criminal Appeals of Texas 427 S.W.2d 624; 1968 Tex. Crim. App. LEXIS 1021 February 14, 1968 PRIOR HISTORY:

[**1]

ets. The court found that the tickets were complaints filed against an indi-

Appeal from Harris County

vidual to lawfully commence prosecution

CASE SUMMARY:

against

him,

pursuant

to

Tex.

Code Crim. Proc. art. 45.01, and that the jury could presume he took them to

PROCEDURAL

POSTURE:

Defendant

sought

review of a judgment of a trial court, Harris County (Texas), which convicted him of the offense of theft of filed papers, Tex. Code Crim. Code Ann. art. 1427.

of

filed

papers,

pursuant

to

Tex. Code Crim. Proc. Ann. art. 1427, because he tore up and threw away four traffic tickets that he took from the clerk of the corporation court. On appeal, the court found that the indictment did not have to specifically allege

what

"lawful

use"

defendant

sought to prevent by taking the tick-

the

prosecution.

The

court

found that the state did not have to prove the original complaints were actually seen by the corporation court clerk because they were found missing, and copies were made, and the individual

OVERVIEW: Defendant was convicted of theft

prevent

whom

they

were

filed

against

testified that he paid defendant money to take care of them. The court found that

the

not

that

individual's of

an

testimony

accomplice

in

was that

there was no evidence to show he was a party to the crime of taking the complaints as a matter of law. The court affirmed defendant's conviction.

OUTCOME: ant's

The

court

conviction

for

affirmed theft

defendof

filed

Page 2 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

papers; the state did not have to establish

what

lawful

sought

to

prevent

traffic

tickets

use by

defendant

taking

because

it

could

recommendation

of

the

jury,

imposition of sentence was suspended

the

by the court and appellant was placed

be

upon probation upon certain terms and

presumed it was to prevent the lawful prosecution the papers were filed to commence.

CORE

Upon

conditions. The indictment, omitting the formal parts, charged:

TERMS:

lawful

use,

indictment,

mercy, unassigned, insisted, matter of law, accomplice, commence, supplemental brief, failure to testify, clerk, overruling, lawfully, traffic, tickets

". . . that CHESTER BASS on or about the 16th day of December, A.D. 1964, in said County

and

State,

and

an-

terior to the presentment of this

indictment,

in

the

County and State, aforesaid,

LexisNexis(R) Headnotes

did

fraudulently

take

and

carry away from the office JUDGES: Dice,

of W. B. Barfield, the Clerk Judge.

Woodley,

Presiding

of the Corporation Court of the City of Houston, of Har-

Judge.

ris OPINIONBY:

County,

filed

Texas,

papers,

to-wit,

complaints

DICE; WOODLEY

certain four

numbered

64260795, 64260796, 64260797 OPINION: [*626]

and Appellant

was

convicted

64260798,

State

of

Texas

The

vs.

James

which

said

under Art. 1427, P.C., of the offense

Vernon

of theft of filed papers and his pun-

papers were then and there

ishment was assessed at confinement in

lawfully

the

office, with the intent to

Texas

Department

of

for a term of seven years.

Corrections

destroy,

Hodges,

styled

deposited suppress,

in

said

alter,

conceal, and dispose of the

Page 3 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

same, so as to prevent the

ted with reference to the lawful use

lawful

which appellant prevented.

[**2]

use

of

such

filed papers."

It should first be noted that the

We shall discuss the grounds of er-

indictment,

as

ror urged by appellant in his brief

language

the

filed

supra. This is ordinarily sufficient.

with

the

clerk

of

the

trial

court.

overruling

quash

the

appellant's

indictment

motion

because

it

to did

not allege, in particular, what "lawful use" appellant sought to prevent in taking the complaints. It is also contended that error was committed by the

followed

statute,

Art.

the 1427,

30 Tex. Jur. 2d 580, Sec. 27; Borski

It is insisted that the court erred in

of

drawn,

court

exception failing

in to

to

overruling the

court's

define

the

appellant's charge

term

for

"lawful

use" and in refusing to grant his motion for an instructed verdict of not guilty because no evidence was presen-

v. State, 154 Tex. Crim. 84, 225 S.W.

2d 180; Campbell v. State, 164 Tex. Crim. 172, 297 S.W. 2d 847. It also follows

the

form

suggested

in

Will-

son's Criminal Forms, Seventh edition, Sec. 1974, at page 451. Under the provisions of Art. 45.01, C.C.P., the purpose of a complaint in corporation court is to commence the proceedings and thereby [**3]

confer

jurisdiction upon the court. This is the ordinary purpose and lawful use of a complaint.

Page 4 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

[*627]

See: Bragg v. State, 109

quired

by

Tex. Crim. 632, 6 S.W. 2d 365, cited

C.C.P.

[**4]

by appellant.

der the facts, no definition was re-

We do not agree that the indictment

Arts.

36.14

and

36.15,

-- we observe that, un-

quired.

should have specifically alleged what

In his next ground of error, appel-

"lawful use" appellant sought to pre-

lant insists that the court erred in

vent in taking the complaints.

failing to grant him a new trial be-

Witte v. State, 21 Tex. Civ. App. 88, 17 S.W. 723, cited by appellant, is

clearly

distinguishable

from

the

present case, because in that case the filed paper was a deed which the state contended had been forged by the accused its

and

then

being

destroyed

used

in

against

him

for

present

case

there

a

to

prosecution

forgery. is

prevent

no

In

the

indication

that the complaints filed in the corporation

court

against

James

Vernon

Hodges were for any use other than to lawfully commence prosecution against him.

Proof

that

appellant

took

the

complaints on file was sufficient to authorize the jury to find that he did so to prevent their lawful use. While appellant's complaint to the court's charge for failing to define "lawful use" is not properly before us for review -- no exception having been made to the charge, in writing, as re-

cause "the verdict of the jury is contrary to the Law and the evidence." It

is

first

insisted

that

the

state's case fails because there was no evidence that the four complaints were ever seen by W. B. Barfield, the corporation court clerk named in the indictment. While the proof does not show that Barfield

actually

complaints,

his

saw

the

original

testimony,

together

with that of his assistant, G. J. Sullivan, does show that the complaints were made and filed. Later they were found

missing,

and

duplicate

copies

were made. The

existence

of

such

complaints

was further established by the testimony of James Vernon Hodges -- which was, in substance, that he gave appellant $ 115 to pay and take care of four traffic tickets and later, in appellant's office, he saw the four com-

Page 5 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

plaints

when

appellant

tore

them

up

and put them in the trash. It

is

further

insisted

that

the

was no proof that the four complaints were regular and valid on their face. do

supra,

not

construe

[**5]

Art.

1427,

as requiring that the

state prove the papers on file and unlawfully taken were valid instruments. Appellant lastly insists that his conviction 38.14,

cannot

C.C.P.,

stand,

because

off

and

take

care

of

the

four

traffic tickets, the evidence does not

evidence is insufficient because there

We

pay

under it

is

Art. based

show that as a matter of law Hodges was a party to the crime of unlawfully taking the complaints. No issue was submitted to the jury as to whether the witness was an accomplice. Appellant is in no position to complain of the court's failure to submit such issue, in the absence of an exception to the court's charge or a request in writing, as required by Arts. 36.14 and 36.15 of the Code of Criminal

Procedure.

Smith

v.

State,

witness

Tex.Cr.App., 415 S.W.2d 206. We over-

James Vernon Hodges, who was shown to

rule the contention and find the evid-

be an accomplice as a matter of law

ence sufficient to sustain the convic-

and

tion.

upon

the

testimony

whose

testimony

of

was

the

not

suffi-

ciently corroborated. While

the

record

Appellant's shows

that

the

complaint

to

certain

jury argument and of the court's ac-

witness Hodges went to appellant, who

tion [**6]

was holding himself out as a bondsman,

testify in the case, presented for the

for

first time in his supplemental

the

purpose

of

having

appellant

in permitting a witness to

Page 6 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

[*628]

brief filed in this court,

(3) "Let me ask you if Velta Robinson

will not be considered as unassigned

wasn't

error, under Sec. 13 of Art. 40.09,

wasn't she here to testify?"

C.C.P.

that

person's

office,

We do not agree that [**7]

The judgment is affirmed.

either

for the state necessarily constituted

ON APPELLANT'S MOTION FOR REHEARING

a direct or indirect reference to appellant's failure to testify.

Woodley, Presiding Judge

As to the first complained of re-

Appellant urges that we consider as unassigned

why

of the above quoted remarks of counsel

OPINION

certain

in

error

remarks

his

than

the

accused,

including

his

state were comments upon his failure

he himself may ask for mercy by means

to testify.

other than taking the stand as a wita

for

er

counsel, may ask for mercy for him and

of

counsel

that the

Deprivation

of

complaint

mark, it is observed that persons oth-

constitutional

ness.

right will be reviewed in the interest

The second remark can be reasonably

of justice, though unassigned. McClel-

applied to the failure of the defense

lan v. State, Tex.Cr.App., 413 S.W. 2d 391.

The claim of error advanced for the first time by supplemental brief filed in this court related to three remarks of counsel for the state in his opening

argument:

(1)

"I

would

like

to

point out first of all the difference between the words justice and mercy. Is a person entitled to mercy unless

to produce the witness Velta Robinson or other testimony than that of the defendant. The clearly

third

remark

reflects

that

complained the

of

reference

was not to the failure of the defendant to testify but to the failure to produce Velta Robinson, an available witness.

he asks for it?" (2) "There wasn't any testimony brought to you to determine the guilt or innocence of this defend-

"For

the

argument

to

come

ant from that side of the table," and

within the mandatory prohib-

Page 7 427 S.W.2d 624, *; 1968 Tex. Crim. App. LEXIS 1021, **

ition

of

supra,

387, 307 S.W. 2d 948, there was no

(now Art. 38.08 V.A.C.C.P.)

witness to refute the testimony of the

it must be such as cannot be

state's witness other than the defend-

reasonably

ant Barrera.

failure

Art.

710,

applied

of

the

to

the

accused

to

produce other testimony than his

own."

Clark

v.

State,

See

also

Ramos

v.

State,

Tex.Cr.App., 362 S.W.2d 647.

We find no violation of Art. 38.08 V.A.C.C.P.

or

of

appellant's

rights

under the self-incrimination provision of the 5th Amendment of the Constitu-

2d

tion of the United States as construed

168 Tex. Crim. 335, 327 S.W.

California, 380 U.S. 609, 14 L. Ed. 2d

Tex.Cr.App.,

419

S.W.

359, 367; Costilla v. State,

by

2d 593; Alford v. State, 158

106, 85 S. Ct. 1229; and Chapman v.

Tex. Crim. 311, 255 S.W. 2d

519; and cases cited under Art.

38.08

[**8]

V.A.C.C.P., Note 77. In Barrera v. State, 165 Tex. Crim.

the

Supreme

Court

in

Griffin

v.

California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

Remaining convinced that the appeal was properly disposed of on original submission, appellant's motion for rehearing is overruled.