Wilson v. State

835 S.W.2d 278, 1992 Tex. App. LEXIS 2448, 1992 WL 218836
CourtCourt of Appeals of Texas
DecidedAugust 12, 1992
DocketNo. 09-91-142 CR
StatusPublished
Cited by1 cases

This text of 835 S.W.2d 278 (Wilson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. State, 835 S.W.2d 278, 1992 Tex. App. LEXIS 2448, 1992 WL 218836 (Tex. Ct. App. 1992).

Opinions

OPINION

PER CURIAM.

On October 19, 1990, an information was filed charging the Appellant with the offense of theft. A juried proceeding followed. The Appellant was found guilty of the offense as charged. The punishment went to the bench. The Appellant was sentenced to a $500 fine and six months confinement. The jury returned this verdict: “We, the jury, find the Defendant guilty as charged” signed by the presiding juror.

The information alleged that the Appellant had exercised control over one jar of Noxema skincream, one Efferdent, one picture frame and one box of shotgun shells of the value of more than $20 but less than $200 from Wal-Mart Stores, Inc., d/b/a Wal-Mart Discount # 140, owner of the items and against its consent. The six months imprisonment was to be served in the county jail. The order involved provided that the verdict and finding of guilty should not become final and that no judgment be actually rendered thereon and that the Appellant be placed on probation for a period of six months under a number of conditions of probation.

The Appellant has advanced seven points of error.

The Appellant’s first point of error is that the trial court erred in admitting into evidence the prosecuting attorney’s leading question and allowing it to be answered. As we perceive the question and the answer, there was no harm visited upon the Appellant. But more importantly, we perceive that two other witnesses at two other places in the record testified to virtually the same evidence. Witness Selman and witness Scott made identification of the property that Officer Adams was quizzed about. We overrule point of error one.

The second point of error is that the trial court erred in rejecting the Appellant’s tender of certain evidentiary matters. The gravamen of this point is that the trial court simply determined that evidence of other occasions and incidents wherein this Appellant’s wife wrote certain checks to Wal-Mart was irrelevant and not material to the offense of theft on the date in question. The date was October 19,1990. That was the crucial date for which the Appellant was charged and later tried for theft. The trial court simply did not permit into the record unrelated transactions with Wal-Mart conducted by the Appellant’s wife. The trial court did, however, permit one exhibit reasoning that this admitted exhibit had an indirect connection with the offense. No error was committed. Tex. R.CRIM.Evid. 401, 402. Appellant concedes in his brief that he has cited no authority in support of his point of error number two.

The seventh point was that the trial court erred in denying Appellant’s motion for a new trial. We have read and analyzed the proceedings in connection with the motion for new trial. The gravamen of the motion for new trial was that there had been an improper conversation between the county attorney and one of the State’s witnesses. The thrust of the alleged conversation was that the county attorney had attempted to advise and thereby influence a subsequent witness as to certain facts that a previous witness had testified to. [280]*280The two witnesses involved were employees of the store. As we understand the record the witnesses on the motion for new trial (with the exception of the Appellant) denied that such a conversation took place. Again, both the employees as well as the county attorney denied that the subsequent witness was “coached” in any manner. It is correct to state that the hearings on the motion for new trial contained a great number of searching questions posed by the attorney for the Appellant but the answers thereto were uniformly “no” or “no, sir” as to any improper coaching or leading or discussing the testimony of a prior witness with a subsequent witness. The trial judge had a right to weigh these questions and certainly weigh the answers thereto. The trial judge was in a superior position to observe the demeanor, the tenor, the facial expression, the body language and the general conduct of all of the witnesses testifying on the motion for new trial.

An assistant county attorney for Angelina County participated in these hearings. The hearings were very carefully and meticulously conducted. After carefully conducting the hearings involved, the trial court overruled and denied the motion for new trial. There was no error. This point of error is overruled.

Additionally, the trial court correctly decided, we perceive, (although it was the trial court’s function and not ours) that the State had not violated the so-called “Rule”. The “Rule” is the placing of the witnesses under the Rule whereby they are not to discuss their testimony one with the other. Tex.R.CRIM.Evid. 613. The witnesses can, however, discuss their testimony with the trial lawyers in the case. The county attorney repeatedly and emphatically denied that he had informed a subsequent witness of the testimony of a previous witness. The trial judge was well within his prerogative to weigh this evidence and to determine the merits of the motion for new trial upon the evidence of this witness and other witnesses that were presented before the bench. Indeed, the proceedings on the motion for new trial demonstrate that the Appellant himself was the only witness who actually stated that the county attorney had informed one Derry Scott, who was a witness for the prosecution in the trial on the merits, as to what, if anything, one Susie Selman, another witness in the trial on the merits, had testified to before the jury. With the exception of the Appellant, the other witnesses testified, directly and emphatically, that the county attorney had simply not informed Scott of the previously given testimony. It should be noted and it is important to reflect that the testimony of the Appellant himself was not abundantly clear as to his assertions and as to his verbal allegations. In fact, the Appellant’s testimony was unclear and indecisive.

The third point of error in the Appellant’s brief avers the trial court erred in failing to include the issue of value in the charge itself. It is perhaps interesting to note that the only testimony in the case is that the value of the items taken was in excess of $21. However, more importantly, we note that there were no objections or exceptions leveled at the charge of the court by the Appellant. We carefully note that the trial court questioned both trial counselors and each trial counselor announced that each had no further evidence. We find in the record:

THE COURT: Both sides rest and close?
MR. JONES: Yes, sir.
MR. ASKINS: Yes, sir.
THE COURT: Here is a proposed copy of the charge. Read that, and I’ll ask you if you have any objections, outside the presence of the jury.
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THE COURT: Any objections to the charge from the State, first?
MR. JONES: No, sir.
THE COURT: Any objections from the Defendant?
MR. ASKINS: No, your Honor.
THE COURT: Any requests or submissions from the State?
MR. JONES: No, sir.
THE COURT: And from the Defendant?
MR. ASKINS: No, sir.

This point of review, therefore, was waived. No request was made; no objec[281]*281tion was made; no exception was taken by the Appellant.

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Bluebook (online)
835 S.W.2d 278, 1992 Tex. App. LEXIS 2448, 1992 WL 218836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-state-texapp-1992.