Ballard v. State , 1975 Tex. Crim. App. LEXIS 413 ( 1975 )

OPINION

DALLY, Commissioner.

After changes of venue had been made from Glasscock County to Midland County and then from Midland County to Brewster County, the appellant was convicted for the offense of murder. The jury assessed the death penalty, but through executive clemency the death penalty was commuted to life imprisonment. In four grounds of error the appellant argues that reversible error was committed in failing to instruct the jury on the law of accomplice testimony, in admitting into evidence statements he had made to a psychiatrist, in permitting a special prosecutor to participate in the prosecution, and in denying him a fair trial because of “an accumulation of errors and irregularities.”

First, we will consider the complaint that the trial court committed reversible error in failing to charge the jury that Thomas L. Dempsey, a State’s witness, was an accomplice witness as a matter of law, or, in the alternative, in failing to instruct the jury on the law of accomplice testimony so that it might decide as a fact issue whether Dempsey was an accomplice witness.

The appellant was charged with the murder of Stephen Currie. Currie was killed on December 2, 1970, in his ranch home by a shotgun blast fired by an unidentified masked man. Several items were taken from the home by the masked man, who under the State’s theory of the case was the appellant. One of the items taken was a woman’s large marquise diamond ring. The appellant on December 9, 1970, traded the marquise diamond ring to Dempsey, a jeweler, for a man’s ring and -four hundred dollars in cash. The man’s ring and the four hundred dollars had a value of less than one-half of the value of the marquise diamond ring. Dempsey took the diamonds out of the mounting, and in his private airplane he flew' to Dallas where he traded the marquise diamond for other diamonds. When officers investigating the murder first approached Dempsey and asked him about the marquise diamond ring he said that he knew nothing about it. The second time the officers questioned Dempsey about the ring he admitted he had received the ring from the appellant. Dempsey testified he did not know the ring had been stolen.

We are not presented here with the question of whether Dempsey would be an accomplice witness in the trial of the appellant for acquiring the diamond ring by committing the offense of robbery or theft. The question is whether Dempsey was an accomplice witness in the appellant’s trial for murder. Since there is no evidence to show that Dempsey was an accomplice, principal, or accessory to the murder of Currie, he is not an accomplice witness in the trial of the appellant for the murder of Currie. See Ham v. State, 4 Tex.App. 645 (1878); Warren v. State, 60 Tex.Cr.R. 468, 132 S.W. 136 (1910); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914); Chandler v. State, 89 Tex.Cr.R. 599, 232 S.W. 337 (1921); Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972); 23 C.J.S. Criminal Law § 786(2). Cf. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961). This ground of error is overruled.

Another complaint is that a court-appointed psychiatrist was permitted to testify about statements the appellant had made to the psychiatrist, and that the prosecution was permitted to use the psychiatrist’s report in an attempt to impeach the appellant. The appellant argues that the out of court statements he made to the psychiatrist are inadmissible for two reasons: First, the statements constituted an oral confession that was inadmissible because it was obtained without meeting the requirements of Article 38.22, Vernon’s Ann.C.C. P.; second, the statements made to the psychiatrist during his examination of the appellant to determine his competence were under the provisions of Article 46.02, § 2(f)(4), inadmissible. We have examined the record and have failed to find any objection to the psychiatrist’s testimony or the use of his report for the purpose of cross examination either because the appellant’s statements constituted an oral confession not taken in compliance with Article 38.22, V.A.C.C.P., or because the appellant’s statements were inadmissible under the provisions of Article 46.02, § 2(f)(4), V.A.C.C.P. The objections referred to in the appellant’s brief cannot be construed to have raised these questions in the trial court. Since these alleged errors were not preserved in the trial court, nothing is presented for review. See, e. g., Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Taylor v. State, 508 S.W.2d 393 (Tex.Cr.App.1974); Hayslip v. State, 502 S.W.2d 119 (Tex.Cr.App.1973); Moore v. State, 480 S.W.2d 728 (Tex.Cr.App.1973).

The appellant asserts that he was denied a fair trial because Mr. Guilford Jones, an attorney hired by the family of the deceased, was permitted to participate in the trial of the case. The appellant argues that Mr. Jones was acting as a special prosecutor and that the record does not show that he was formally appointed to that office or that he filed an oath of office as required by Articles 2.01 and 2.07, V.A.C.C.P. These statutes are only applicable when the elected district attorney is disqualified to prosecute a particular case and the district judge appoints a special prosecutor under the provisions of these statutes. In this case the district attorney in the district where the offense was committed and the district attorney in the district where the case was tried were both active in the prosecution of the appellant. It is not alleged that they did not have the control and management of the prosecution. Due process is not denied by permitting a privately retained attorney to participate in a criminal prosecution when the district attorney retains control and management of the prosecution. See Ex parte Powers, 487 S.W.2d 101 (Tex.Cr.App.1972); Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.1968); Powers v. Hauck, 399 F.2d 322 (5th Cir. 1968).

The appellant’s last ground of error which complains about an “accumulation of errors and irregularities” does not comply with requirements of Article 40.09, § 9, V. A.C.C.P., and presents nothing for review.

The judgment is affirmed.

Opinion approved by the Court.