Bendaw v. State

429 S.W.2d 506, 1968 Tex. Crim. App. LEXIS 830

• Court: Court of Criminal Appeals of Texas
• Decided: June 12, 1968
• Docket: 41314
• Status: Published

Opinions

OPINION

DICE, Judge.

The conviction is for robbery; the punishment, twelve years.

Trial was before a jury, upon appellant’s plea of guilty.

At the trial the injured party testified that on the date alleged the appellant did by assault and violence take from his person and possession and without his consent the sum of $47 in money.

Appellant, as a witness in his own behalf, admitted having committed the robbery but swore that he only took $5 in money from the injured party.

Appellant also gave testimony in support of his application for probation, which the jury refused to recommend in their verdict.

One ground of error is urged by appellant in his brief filed with the clerk of the trial court — which is that the court erred in permitting Officer Benefield to relate a statement made by appellant while under arrest when he had not been advised of his constitutional rights to remain silent. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, by the Supreme Court of the United States, is cited and relied upon by appellant in support of his contention.

The ground of error is predicated upon the court’s action in permitting Officer Benefield to testify that when he went to appellant’s home and asked him if he committed the robbery the appellant replied that he did not and that “he didn’t know anything about it.” It was shown by both the voir dire and direct examination of the officer that at the time appellant made the statement to him he was not under arrest nor had he been warned of his constitutional rights. Later he was placed under arrest and warned.

Under the facts, Miranda v. State of Arizona, supra, is not applicable, as it appears that the statements made by appellant to the officer were not given as the result of custodial interrogation while under arrest. Newhouse v. State, Tex.Cr.App., 420 S.W.2d 729.

If, as contended by appellant, Miranda v. State of Arizona were applicable, there was no injury to appellant, as his statement was purely exculpatory.

Appellant’s plea of guilty was an admission of all facts necessary to establish his guilt, and the evidence offered by the state was for the jury’s benefit in fixing punishment. Miller v. State, Tex.Cr.App., 412 S.W.2d 650. We do not agree that the admission in evidence of appellant’s exculpatory statements would prejudice the jury against him in fixing the punishment.

Further, in his own testimony, appellant testified without objection on cross-examination that in his conversation with the officer he denied knowing anything about the robbery. Having testified to substantially the same facts, appellant is in no position to urge as reversible error the admission of Officer Benefield’s testimony. McFarlane v. State, 160 Tex.Cr.R. 340, 269 S.W.2d 389; Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109.

The ground of error is overruled.

The judgment is affirmed.