Weatherly v. State

296 S.W.2d 764, 163 Tex. Crim. 659, 1956 Tex. Crim. App. LEXIS 1211

• Court: Court of Criminal Appeals of Texas
• Decided: November 28, 1956
• Docket: 28521
• Status: Published

Opinions

DICE, Judge.

The conviction is for burglary, with a prior conviction of an offense of like character alleged for the purpose of enhancement; the punishment, 12 years in the penitentiary.

The state’s evidence shows that the appellant was arrested while seated in his automobile, parked across the street from a building occupied by the Hancock Paint Company at the intersection of Lipscomb and Magnolia Streets in the city of Fort Worth.

The record reflects that the arrest was made around 1:30 A.M. after the appellant and his companions had been under surveillance by city detectives Baker, Hopkins, and Matlock, each of whom testified at the trial upon being called as witnesses by the state.

According to their testimony, it is shown that around 8:00 o’clock P.M. Detectives Baker and Hopkins located an automobile for which they were looking, parked at a place known as “Stella’s Place,” on East Belknap Street. After they had gone for Lieutenant Matlock and returned, appellant and a companion, Marvin Niles Stubblefield, came out of the place, got in the car, and appellant then drove to a place known as “Ruck’s Drive-In,” and the two got out of the car and went in. The three detectives having followed the automobile, went in the place whereupon Lieutenant Matlock engaged the appellant in conversation. After the detectives had come out of the place, the appellant and his companion, Stubblefield, came out, got in the car, and were again followed by the officers. Appellant stopped the car on Main Street. After the officers had gone to the police station and changed automobiles, they returned and observed three men walk across the street and get in the car. The car was then driven to Travis Street and stopped, and the officers who were following behind observed two men make several trips walking from the car to a house and back. The car again started up and was followed by the officers until it pulled in on a parking lot at a hamburger stand. The officers testified that when the car stopped on the parking lot they pulled into an old filling station about a block away and, from this vantage point, observed a man get out of appellant’s automobile, walk to the door of the paint store, and, after pushing on the door, return to the automobile; that, after they observed two men then go from the automobile and enter the building through the door, Lt. Mat-lock proceeded to the car and arrested appellant seated alone in the car; and, according to Lt. Matlock, at such time, the motor of the car was running and appellant was looking back toward the store building. Detectives Baker and Hopkins and other officers then went in the building and, upon entering, apprehended two men on the inside who were identified as Marvin Niles Stubblefield and Harry Huggins, and also discovered the contents of the knob of the safe lying on the floor and a sledge hammer and bar nearby.

The state made proof of appellant’s prior conviction as alleged in the indictment.

As a witness in his own behalf, appellant testified that, on the night in question, he was taking his companions home, and that the reason he stopped was because Stubblefield told him that was where he lived. He further testified that he did not have any indication that there was to be a burglary that night.

Appellant further offered testimony in support of his contention that because of certain shelves and wall paper displays in the paint store, it was impossible for the officers looking from the filling station through the plate glass windows of the store to see the door which they testified was entered and the men going to and from appellant’s automobile.

The court, in his charge, fully instructed the jury on the law of principals.

The jury chose to accept the state’s testimony and rejected that of the appellant, and we find the evidence sufficient to support their verdict.

By Bills of Exception Nos. 1 and 2 appellant complains of certain jury argument made by state’s counsel wherein counsel, in his opening argument, stated: “If juries will convict the guilty, maybe the newspapers will stop referring to Fort Worth as ‘Little Chicago.’ and, in his closing argument, referred to the appellant as a “dangerous criminal.” It is shown by the bills that the court sustained appellant’s objection to the argument, instruced the jury not to consider the same, and, after overruling appellant’s motion for mistrial, again instructed the jury not to consider such argument.

It is the rule that injury from improper remarks of counsel is ordinarily obviated when withdrawn by the court and the jury instructed to disregard same. It is only when the argument in such cases is obviously prejudicial that a reversal of the conviction is called for. 42 Tex. Jur. No. 184, P. 239; Woodland v. State, 148 Tex. Cr. R. 100, 184 S.W. 2d 625.

In determining whether the effect of an improper argument is of such a nature as to be obviously hurtful and prejudicial the facts and surroundings of the case must be looked to, and such is the rule where the objectionable statement or argument does not violate the mandatory provisions of a statute. 42 Tex. Jur., No. 186, P. 241; Arcos v. State, 120 Tex. Cr. R. 315, 29 S.W. 2d 395; and Bushiey v. State, 128 Tex. Cr. R. 1, 79 S.W. 2d 124.

We have concluded that the argument was not so obviously prejudicial that its effect upon the jury could not be removed by the court’s instruction to disregard the same.

We are unable to agree with appellant’s that the reference to Fort Worth as “Little Chicago” conveyed to the jury a serious undertone concerning Chicago racketeers in Fort Worth. We may take judicial notice that Chicago is one of our major cities, but not that it is a city of racketeers. Nor may we view the statement in the light of appellant’s contention that Harry Huggins, who was implicated with him, was a notorious local underworld character who had been implicated in a notorious murder case, and had received newspaper publicity, because the record does not bear out such facts.

We are also unable to agree with appellant’s contention that state’s counsel’s reference to him as a “dangerous criminal” constituted reversible error because it was an attempt to place his reputation in issue when it had not been placed in issue. It is shown by the court’s qualification to Bill of Exception No. 2 that such reference by state’s counsel was made after argument by appellant’s counsel to the jury concerning the appellant being a law-abiding citizen for a long number of years since his prior conviction. In view of the court’s qualification and the instruction of the court to the jury not to consider the argument, reversible error is not shown by this bill.

Bill of Exception No. 3 presents appellant’s contention that state’s counsel committed reversible error in propounding to him, on cross-examination, the following question: “You don’t know who it was that might have informed the police there was to be a burglary?”

The record reflects that, before the question was answered, the court sustained appellant’s objection thereto, instructed the jury not to consider the same, and then overruled appellant’s motion for mistrial.

In view of the court’s instruction to the jury not to consider the question, we perceive no reversible error in the mere asking of the same as the record does not bear out appllant’s contention that the court had previously ruled the testimony sought to be elicited inadmissible and that the question was asked by state’s counsel in bad faith.

The judgment is affirmed.

Opinion approved by the Court.