Etzler v. State

Appellant renews his insistence that the evidence fails to support a finding by the jury that he entertained an intent to permanently appropriate the car at the time he took possession of it in Lynn County. The intent with which appellant acted can only be arrived at from his proven acts or words. It will be remembered that appellant took over the control of the car in Lynn County. He finally made Knight leave the car in Lubbock County, telling him he would find his car next morning in Big Spring. This, standing alone, if true, would warrant a conclusion that the car was taken only with the intent of temporary use. What does appellant himself say about it? "I told him to get out of the car and for him to start walking north. I got back on the highway and started back into Lubbock and went as far as the north underpass and then turned around and went north again on the Plainview highway." When appellant started back toward Lubbock he was going in the direction of Big Spring, but when he again turned north at the underpass he was going away from Big Spring, and continued on that course until he was overtaken in Swisher County. Again, we hear appellant's statement through his own witness, the sheriff of Lubbock County, who went to Swisher County for appellant, after he was stopped and detained by officers of the latter county. After testifying that appellant looked discouraged and downhearted, the witness gave the following evidence. "He said he was tired out and looked like he was about to the end of the row, and he said that he couldn't *Page 334 walk any further, and he fell on that idea of getting him a car and trying to get on his way." The two statements of appellant, one in his confession, the other to his own witness, in connection with the other facts recited in our original opinion, seem to leave no doubt as to appellant's intention when he took possession of the car in Lynn County.

Appellant further insists that a reversal should be predicated on the complaint that the district attorney in argument expressed his opinion of appellant's guilt. There is nothing in this record which indicates that the district attorney knew anything about the facts save as reflected from the evidence heard upon the trial. In Marinkovich v. State,96 Tex. Crim. 59, 255 S.W. 734, and Walker v. State, 138 Tex. Cr. 660, 137 S.W.2d 1033, we had occasion to quote with approval from the early case of Young v. State, 19 Tex. Cr. App. 536 what this court said upon the subject. We now refer to these cases again, and also call attention to the authorities cited in the cases mentioned.

A re-examination of the record leads us to say that it appears therefrom that appellant was denied no right to which he was entitled, but on the contrary, shows that he was awarded favors which might have been properly denied him had the representative of the State not waived the rules of evidence. Many ex parte letters written by friends of appellant and his family from his old home in Virginia to the former district attorney in his behalf were permitted to go to the jury, every one of which letters was subject to exclusion had the State urged objection to their admission.

We fail to see how a jury having any regard for their oath could have returned any other verdict than they did.

If any errors were committed upon the trial they were against the State, not against appellant.

The motion for rehearing is overruled.