Garza v. State

368 S.W.2d 213, 1963 Tex. Crim. App. LEXIS 910

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 1963
• Docket: 35434
• Status: Published

Opinions

McDonald, judge.

The offense is felony theft, with a prior conviction of the same nature alleged for enhancement; the punishment, ten years' confinement in the penitentiary.

Ronald Rodgers, an employee of the Brewer T V & Appliance Store, testified that he was in sole control of the store on the 16th of May, 1962, when Benito Suniga came in and asked to see his stock of used refrigerators. They went to the rear of the store, behind a partition, to look at the stock. After talking for a few minutes, Rodgers concluded he was not going to make a sale and started back to the front of the store. He noticed a boy carrying a portable television set out the front door and he pursued and caught him as he was going around in front of a 1954 Chevrolet. The appellant was in the car at the wheel. Another television set from the store was in the seat beside him. Rodgers recovered both sets, and called the police.

A. W. Walzel, a deputy sheriff of Refugio County, testified that while on the lookout for such a car he was passed by a yellow Chevrolet bearing a corresponding license number. He testified that the appellant was the driver and that he chased the car across the railroad track south of Woods-boro, where the car stopped and appellant and the other occupant of the car jumped out and attempted to flee on foot. Both were apprehended.

The evidence is sufficient to sustain the conviction. Greer v. State, 168 Tex.Cr.R. 485, 329 S.W.2d 885.

Appellant’s primary complaint is jury misconduct. It is his contention that the jury discussed his failure to testify.

All members of the jury were called as witnesses on appellant’s motion for new trial. Nine of the jurors recalled references in their deliberations to his failure to take the stand. Two others testified that they could not remember whether such references had or had not been made. One testified that he was positive that no such reference had been made.

“The trial court is clothed with discretion in determining whether a new trial shall be granted on the ground that the jurors discussed the failure of the accused to testify in his own behalf; and an order denying the motion ordinarily will not be disturbed if the court has determined, on conflicting evidence, that the alleged misconduct did not in fact occur, or that the statement was made casually or incidentally.” 41 Tex.Jur. 2d, New Trial, Sec. 44, at page 136.

At a hearing such as this, the trial judge is the trier of the facts, and it is his duty to believe or disbelieve the witnesses. In view of the positive statement of the witness (juror) Mokry that “It didn’t take place,” we cannot say that the court below abused his discretion. Simpson v. State, Tex.Cr.App., 332 S.W.2d 732.

The jury returned a verdict finding appellant guilty of the primary offense, and that all the allegations contained in the second count of the indictment charging the prior conviction were true. The sentence imposed by the trial court reads “not less than two (2) nor more than ten (10) years.” This is reformed so as to provide no minimum punishment. It shall read that appellant be confined in the penitentiary for a term of ten (10) years. Art. 62, Vernon’s Ann.P.C.; Art. 847, Vernon’s Ann.C.C.P.; Tilghman v. State, 133 Tex.Cr.R. 640, 113 S.W.2d 911; 5 Tex.Jur. 2d, Appeal and Error — Criminal, Sec. 455, p. 726.

Finding the evidence sufficient and no reversible error appearing, the judgment, as reformed, is affirmed.