Edward Ernest Mays v. The State of Texas--Appeal from 361st District Court of Brazos County

AFFIRMED 18 OCTOBER 1990

NO. 10-90-018-CR

Trial Court

# 18,774-361

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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EDWARD ERNEST MAYS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 361st Judicial District Court

Brazos County, Texas

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O P I N I O N

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This is an appeal by defendant Mays from his conviction for burglary of a habitation, enhanced by 2 prior felony convictions, for which he was assessed life in the Institutional Division of the Texas Department of Criminal Justice.

Mr. Zalazar was at home about noon on May 26, 1989, when he heard a knock at his door. He chose not answer it. Shortly thereafter he heard the glass break at the rear of his house; he went to the back room and saw a black hand reaching inside his home. He ran out the side door to the home of his neighbor, Mrs. Sweed, who had been sitting on her porch when defendant and a Mr. Bailey walked past her house. Mr. Zalazar asked Mrs. Sweed to call the police and gave them a physical description of the two men she saw. Several officers responded and, following a foot pursuit, defendant and Mr. Bailey were apprehended. They were both taken to Mrs. Sweed who identified them as the two men she had seen going to Mr. Zalazar's house. On the back window the police recovered the fingerprint of Mr. Bailey. Mr. Bailey testified he held the window open for defendant, and that both of them participated in the burglary. As noted, defendant was convicted and, after proof of 6 prior felony convictions, was assessed life.

Defendant appeals on 2 points.

Point 1 asserts: "The trial court abused its discretion in denying [defendant's] motion for a new trial". Defendant filed a motion for new trial alleging newly discovered evidence. The trial court, after an evidentiary hearing, denied defendant's motion.

Sean Bailey testified in defendant's trial that he and defendant went into Mr. Zalazar's house and that the burglary was defendant's idea. At the hearing on the motion for new trial defendant presented the testimony of Keith Hines who testified that while in jail with Bailey, Bailey told him about the burglary but did not say anyone else was involved, leaving the impression that Bailey committed the burglary alone. Defendant also presented the testimony of Wenen Johnson who stated that while in jail with Bailey, Bailey told him that defendant did not break into the house with him.

The decision to deny a defendant's motion for new trial on the ground of newly discovered evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion; and in order to show an abuse of discretion the defendant must show that the "newly discovered evidence" (1) was unknown and unavailable at the time of trial, (2) not due to lack of diligence on the part of defendant, (3) is admissible and not cumulative, corroborative, collateral or impeaching, and (4) probably true and would probably bring about a different result. Eddleman v. State, Ct.Crim.Appls, 591 S.W.2d 847; Saunders v. State, Ct.Crim.Appls, 572 S.W.2d 944; Bolden v. State, Ct.Crim.Appls, 634 S.W.2d 710.

The "newly discovered evidence" is cumulative and impeaching evidence. At trial Bailey testified that defendant and Bailey burglarized the house; John Quinn, defendant's previous attorney, testified that Bailey told that he, Bailey, went into the house alone. Thus prong 3, supra, has not been met. And in view of Mrs. Sweed's identification of defendant as one of the 2 black males at the Zalazar house, and the apprehension of defendant and Bailey by the police after the chase on foot, we hold that prong 4, supra, has not been met and that the "newly discovered evidence" was probably not true and probably would not bring about a different result in the case.

Point 1 is overruled.

Point 2 asserts: "The evidence is insufficient to sustain a conviction".

The standard for review in cases involving the sufficiency of the evidence is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; and that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. Carlson v. State, Ct.Crim.Appls, 654 S.W.2d 444; Jackson v. Virginia, US S.Ct., 99 S. Ct. 2781.

Here, Mr. Bailey testified that he and defendant committed the burglary; Mrs. Sweed, who lives next door to the house burglarized, testified she saw defendant and Bailey approach the house and go around to the back of the house together; Mr. Zalazar heard his back window glass break and saw a black hand reach in; Mr. Bailey's fingerprints were found on the window; Mrs. Sweed called the police who came, saw defendant and Bailey running away from the premises, gave chase, and apprehended them.

The evidence is more than ample and sufficient to sustain the conviction.

Point 2 is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISH Chief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means, and Chief Justice McDonald (Retired)]