author: ONION, Judge.

text:
    Joe James ROBINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40340.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    Paul J. Chitwood, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Stauf-fer, Al Walvoord and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, seventy (70) years . confinement in the Texas Department of Corrections.

A recitation of the facts is unnecessary for a proper disposition of the grounds of error relied upon by appellant.

In his first ground of error, appellant complains of the trial court’s refusal to grant his motion to dismiss the indictment at the close of the State’s case in chief on the issue of guilt or innocence.

Trial commenced on September 12, 1966.

In the second paragraph of the indictment, it was alleged that the appellant had been previously convicted of the offense of Robbery by Assault in Lubbock County, Texas, in 1957. In accordance with Article 36.01, Vernon’s Ann.C.C.P., the second paragraph of the indictment alleging the prior conviction was not read to the jury, and the defendant entered his plea of not guilty to the primary offense.

At the close of the State’s case in chief upon the issue of guilt or innocence of the primary offense, appellant made a motion which he has designated a dismissal motion, rather a motion for instructed verdict, claiming there was a fatal variance between the proof offered and the allegations of the indictment alleging a prior conviction since the proof at that point of the trial showed no such prior conviction. The Court refused to rule on appellant’s motion saying it was untimely made and pointing out that the second paragraph of the indictment was relevant to and must be resolved at the separate hearing on punishment if the jury found the appellant guilty of the primary offense. The trial court was correct.

Article 36.01, supra, provides in part, as follows:

“A jury being impaneled in any criminal action, the cause shall proceed in the following order:
1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are al-' leged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.
2. * * *
3 * * *
8. In the event of a finding of guilty, the trial shall then proceed as set forth in Article 37.07.”

See Article 37.07, C.C.P.

Appellant’s first ground of error is overruled.

In his next ground of error, appellant urges that the trial court erroneously altered or amended the indictment as to the matter of substance.

The trial court submitted to the jury in its charge on the issue of guilt or innocence only the first paragraph of the indictment alleging the primary offense. After a verdict of guilty was returned, the Court sustained appellant’s objections to the second paragraph of the indictment alleging the prior robbery conviction because it was shown that on the date alleged in the second paragraph there had been no final conviction. The second paragraph was dismissed by the Court,

Appellant’s counsel acknowledges in his brief that he is aware that allegations of a prior conviction are not a substantial part of the primary offense, but are for the determination of punishment alone. Nevertheless, he contends that the submission of the primary offense alone to the jury in the Court’s charge on guilt or innocence as well as the subsequent dismissal of the second paragraph constituted an amendment or alteration of the indictment as to a matter of substance and was reversible error. We cannot agree. Article 36.01, supra; Article 37.07, supra; Epperson v. State, 168 Tex.Cr.R. 557, 330 S.W.2d 445; Urtado v. State, 167 Tex.Cr.R. 318, 319 S.W.2d 711.

The dismissal of the second paragraph was at appellant’s request and was favorable to him. Further in Epperson v. State, supra, this Court said:

“If we understand appellant’s next contention, it is that the indictment against him was ‘amended’ when only the primary offense was submitted to the jury. The submission of only one of several counts would not constitute an amendment or alteration of the indictment.”

The appellant chose the jury to assess the punishment and the Court in its charge following the hearing on punishment did not mention or allude to the enhancement statute (Article 62, Vernon’s Ann.P.C.). At no time was the jury made aware of the allegations of the second paragraph.

The record does reflect that at the hearing on punishment, the appellant in person and his counsel stipulated he had twice previously been convicted of felonies in Texas. One of the prior convictions stipulated was the same conviction that had been improperly alleged in the second paragraph of the indictment.

In his last ground of error, appellant contends the Court abused his discretion in allowing the State’s attorney to continue his closing jury argument on the hearing on punishment after the allotted time had expired and over the objection of the appellant.

It appears that the trial court allotted five minutes to each side for jury argument. Such action was taken without objection and was apparently by agreement. During the progress of the concluding argument by the State, the Court cautioned, “Time to start closing, Mr. Stauf-fer.”

Shortly thereafter, as the State’s counsel was saying, “ * * * it is the recommendation of the District Attorney’s office * * * ”, appellant’s counsel objected to any further argument as being beyond the time allotted.

The objection was overruled and the State’s counsel was instructed by the Court to “close up”. Three sentences, or 123 words later, State’s counsel concluded his argument.

Appellant admits that the record does not reflect the time actually consumed in argument, but estimates it was far in excess of the time allotted and that such extension permitted the State’s counsel to make a recommendation to the jury of ninety years as punishment in the cause.

The trial court is vested with broad discretion in regulation of the duration of argument to the jury. See 56 Tex.Jur.2d, Trial, Secs. 231, 232; 6 A.L.R.3d 604.

As a general rule the consumption by an attorney of more time than was allotted him is not reversible error, if in allowing him to finish his argument, the Court did not abuse its discretion, and some substantial right of the complaining party was not thereby denied him.

In Hamer v. State, 104 Ark. 606, 150 S.W. 142, the Supreme Court of Arkansas said:

“We do not think the statements of the prosecuting attorney, objected to, transcended the bounds of legitimate argument in the presentation of the case to the jury, nor that the Court abused its discretion in permitting him to take two minutes more in his concluding argument than the time allotted each side for argument of the case when it began. This was a matter of discretion within the discretion of the Court; and, unless an abuse of that discretion is shown or some prejudice resulting to the defendant on account of it, the verdict will not be disturbed on appeal.”

Since the record does not reflect that the State’s counsel actually exceeded the time allowed or that his recommendation as to punishment was improper argument or prejudicial to the defendant; 56 Tex.Juris 2d, Trial, Sec. 278; Guajardo v. State, Tex.Cr.App., 363 S.W.2d 259; Steen v. State, 158 Tex.Cr.R. 77, 253 S.W.2d 279; we cannot conclude that reversible error has been shown. Even if the record did reflect that prosecutor did somewhat exceed the time allotted, we could not conclude that the Court abused its discretion in allowing him to do so under the circumstances of the case.

The judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Florence Starts DICKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40346.
    Court of Criminal Appeals of Texas.
    May 17, 1967.
    Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert H. Stin-son, Jr., Scott Bradley and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder with malice; the punishment 10 years.

Trial was had July 25, 1966.

Officer Gamón testified that on May 27, 1966, in answer to a radio call about 11:08 p. m., he proceeded to 1901 Duluth Street, the address of appellant and her husband, the deceased. Upon arriving, he and his partner observed appellant standing in the front yard and that in answer to his question of whether she was the one who called the police, appellant replied, “Yes, I just shot my husband.” Upon entering the house the officers found the deceased sitting in a chair in a relaxed position with his head back and his eyes open. Several wounds were apparent and he was obviously dead. No signs of a struggle were visible. The appellant relinquished a .22 caliber pistol and Dr. Rose, the doctor who performed the autopsy on the deceased, testified that the three fired shells from the pistol could easily have caused the four wounds in the deceased.

Appellant, although admitting that she shot the deceased and identifying the pistol as the weapon used, contended that she did not intend to kill him and that any injury she caused was in self-defense. Witnesses for the defense testified that on several occasions prior to the murder they had observed the deceased cursing and beating the appellant. Appellant testified that on the evening in question the deceased came home intoxicated and accused her of having a date with another man, and that although she denied having the date, he struck her several times, blacking her eye and breaking her tooth. After he had stopped beating her and after they had eaten dinner, he went into the living room, took off his shirt, sat in a chair and listened to music. At this point, some three hours after the beating, appellant shot him.

The state did not seek the death penalty and the issue of guilt or innocence was tried before a jury. The court charged the jury on the necessary intent required to support a conviction for murder with malice and also on the issue of self-defense. The jury found the defendant guilty and the appellant elected for the court to assess the punishment.

Appellant’s first ground of error is that the evidence is insufficient to support the verdict because there is no showing that she intended to kill the deceased. Appellant admitted shooting the deceased and when asked where the first shot hit the deceased she testified, “Somewhere in his head, somewhere,” and when asked what position deceased was in when he was shot she replied, “he was relaxing himself.” We find these admissions along with the evidence set out above sufficient to justify the jury’s finding an intent to kill. See Stewart v. State, 168 Tex.Cr.R. 166, 324 S.W.2d 228 and Boatwright v. State, 169 Tex.Cr.R. 280, 343 S.W.2d 707.

Appellant’s second ground of error relates to alleged prejudice created by the exhibition and mention of certain photographs before the jury. The photographs were not included in the record on appeal' and for this reason we are unable to pass-upon her contention.

Appellant’s third ground of error relates-to alleged misconduct of the prosecutor. She contends that waving pictures before the jury and certain statements made by the prosecutor injected new facts into the case. As stated above, the pictures are not before us and we find no comment by the prosecutor that violates the rule set out in Green v. State, 153 Tex.Cr.R. 442, 221 S.W.2d 612, and Stovall v. State, 153 Tex.Cr.R. 495, 221 S.W.2d 278.

Finding no reversible error, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Richard DRAKE, Appellant, v. The STATE of Texas, Appellee.
    No. 40338.
    Court of Criminal Appeals of Texas.
    May 10, 1967.

      J. Rodney Brister, Dallas, for appellant.
    Henry Wade, Dist. Atty., Tom Reese, Charles Caperton and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery; the punishment, life.

Trial was before a jury on a plea of not guilty. The jury having found him guilty, appellant requested that the jury assess the punishment.

The sole ground of error set forth in appellant’s brief is:

“The Trial Court erred in refusing to sustain the defendant’s objection to certain harmful and prejudicial testimony which was used by the State to Identify the defendant.”

The witness E. J. Carter, the person named in the indictment as having been robbed, positively identified appellant as the ■man who robbed him of $72.00 in the rest room at the Brown Derby Cafe in Dallas about 1:30 A.M. on April 3, 1966.

The brief reflects that the ground of error relates to the following examination of state’s witness Robert Simmons, Special Policeman on duty at the cafe.

“Q. All right, on the night of April the 3rd, 1966, were you a special policeman at the Brown Derby Cafe?
“A. I was.
“Q. All right, would you tell us what, if anything, of an unusual nature occurred that evening?
“A. Mr. Carter came out of the restroom bleeding and I grabbed him and asked him what happened and he said a man robbed him, knocked him in the head.
“Q. Did he tell you how much money he robbed him of ?
“A. He did.
“Q. How much was that?
“A. He didn’t know precisely how much but he described a fifty dollar bill, a twenty and some ones, that’s what he told me.
A fifty and twenty and some ones? p
That’s right. >
All right, and then did he give you a description of the man ? p
“A. He did.
“Q. All right, do you see that man he described in this courtroom?
“MR. BRISTER: Object to that, Your Honor.
“WITNESS: Ido.
“MR. BRISTER: He’s going to identify this man on the description that was given to him two months ago.
“MR. CAPERTON: I’ll withdraw it.
“Q. Do you see the man in the courtroom today?
“A. I do.
“Q. Would you point him out for the jury, please ?
“A. Sitting right on the end over there.
“Q. All right, at the time that he described him did he look like he does today ?
“A. Well, no, during the time he was wearing a beard then.
“Q. All right, this Defendant was wearing a beard?
“A. He was.”

The question to which appellant objected without stating any ground therefor was withdrawn.

There was no motion to have the jury instructed to disregard the answer and no ruling by the court is reflected. Bradley v. State, Tex.Cr.App., 409 S.W.2d 863.

The testimony of the police officer which follows the answer to the question which was withdrawn was introduced without objection. Huggins v. State, 163 Tex.Cr.R. 522, 293 S.W.2d 779.

The judgment is affirmed.


author: BELCHER, Judge.

text:
    Bobbye Inethil HOLLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 40320.
    Court of Criminal Appeals of Texas.
    May 10, 1967.
    Wardlow Lane, Center, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for murder with the punishment assessed at two years.

Trial was had and notice of appeal was given subsequent to January 1, 1966.

It is undisputed that the appellant killed the deceased by shooting him in the chest with a .22 caliber rifle while they were alone in their home shortly after midnight.

The appellant testified that she and the deceased went to a dance hall in separate cars on the night of the killing, he first returned home, and she arrived home about midnight; that soon after her arrival, the deceased, who was drunk, asked her where his pistol was, began cursing her and abusing her physically, saying, “I am going to kill you,” and he next said, “I am fixing to blow your goddamn brains out” as he came toward her, and she said, “Stop, stop,” fired two shots in the ceiling with a .22 caliber rifle, but when he kept coming she shot him because she was in fear of bodily injury and her life.

In the absence of a state’s brief, its position is not presented except as reflected by the record on appeal.

As grounds of error, the appellant insists that the trial court erred in admitting the testimony of Officers Mitchell and Sowell of claimed oral statements which she made to them after they started to the hospital and also other statements for almost two hours because they were not res gestae and further, because she was under arrest at the time.

The testimony pertaining to the making of the oral statements by the appellant was developed on the voir ■ dire of Officers Mitchell and Sowell, the objections directed by the appellant to the admission of said statements in evidence before the jury were overruled, and to such action of the court the appellant reserved her exception.

The evidence reveals that the oral statements complained of were made under the following facts and circumstances:

The shooting took place shortly after the appellant arrived home around midnight, and she telephoned the officers and the hospital, telling them she had shot her husband, and two city officers arrived at her home about 12:25 a. m., when the appellant told the officers at the front door she had shot her husband, they could see him lying on the floor. After they examined him, she showed them the .22 caliber rifle she used to shoot him. On arrival of the ambulance the officers assisted in placing him in it. At this time the family physician arrived and he followed the ambulance to the hospital. In referring to the officers the appellant said, “They were taking me, the policeman said ‘Come on’ ” and they went to the hospital about 12:45 a. m., with Officer Bailey driving the police car and Officer Sowell and the appellant riding in the rear seat. The deceased lived about fifteen minutes after reaching the emergency room. In a short time Officers Mitchell, Sowell, and Bailey, and the appellant returned to appellant’s home in the police car. After their arrival and while going from the car to the house the state’s evidence reflects that she made the statement that she drove up against deceased’s car in the driveway so he couldn’t leave, but the appellant denied making such statement.

The court sustained the state’s objection to the question asking the appellant if she felt that she was in charge and under the control of the officers after they arrived at her house, but later she did testify that an officer told her to get “a wrap because it was going to be cold down there in jail.”

In addition to the above facts, Officer Sowell testified that the appellant was never arrested until about 2 a. m., when they were at the hospital the second time, but that after she told him she had shot her husband he would not have let her leave or go anywhere. Officer Mitchell testified to substantially the same facts as Officer Sowell except he first saw the appellant at the hospital on her first trip. Officer Bailey did not testify.

From all the facts and circumstances in evidence, it is concluded that the appellant was under arrest at the time she told Officer Mitchell that she had blocked deceased’s car in the driveway, and that such statement was not res gestae. 24 Tex.Jur. 2d 257, Sec. 659; Jones v. State, 44 Tex.Cr.R. 405, 71 S.W. 962; Willoughby v. State, 87 Tex.Cr.R. 40, 219 S.W. 468; De Lira v. State, 164 Tex.Cr.R. 194, 297 S.W.2d 953. The disposition makes it unnecessary to consider the admissibility of the oral statements other than the one set out herein.

Among the oral statements, which the appellant contends were not admissible in evidence on the grounds that they were not res gestae and she was under arrest at the time, are those revealed by the following testimony of Officer Mitchell in stating what she said on their return to her house:

“Q Did she (appellant) say anything Mr. Mitchell from — when you got out of the car walking to the house?
“A Yes, sir.
“Q What did she say?
“A She said ‘See here I drove right up against his car so he couldn’t leave’.
“Q How many cars were in the driveway?
“A Two.”

For acquittal, the appellant relied solely upon self-defense; and the court charged the jury upon the law applicable thereto.

The court also charged the jury upon the law of provoking the difficulty. To the giving of this charge the appellant duly reserved her exception.

The testimony that the appellant drove her car behind the deceased’s car so he could not leave could be used by the jury to show a plan, scheme and design to carry out her threats, and also could be used to combat her plea of self-defense. Further, the blocking of his car in the drive-way could also be used by the jury in support of the state’s position that she provoked the difficulty, if she did, as the jury was charged. The admission of said statement, which was not res gestae, allowed the state to prove by the testimony of the officer having her under arrest, an oral statement made by the appellant, which could be used by the jury as an incriminative fact tending to establish her guilt.

It is evident that the admission of appellant’s statement made at the time of her return home from the hospital was prejudicial to her rights and deprived her of a fair and impartial trial.

The judgment is reversed and the cause is remanded.


author: DICE, Judge.

text:
    Pedro VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40185.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Rehearing Denied May 24, 1967.

      Tom L. Ragland, Samuel R. Jones, Waco, for appellant.
    Don Hall, Ex-Dist. Atty., Martin Eichel-berger, Dist. Atty., Waco, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for murder without malice (Art. 802c, Vernon’s Ann.P.C.); the punishment, five years.

In his brief filed in the trial court, appellant challenges the sufficiency of the evidence to support the conviction.

The state’s evidence shows that on the day in question the appellant came to Waco from Dallas with two companions, Samuel Shelton and Herman Johnson. The three were traveling in a 1959 red-and-white Oldsmobile which Shelton had stolen in Dallas. Enroute to Waco they drank some beer and a half-gallon of wine which Shelton purchased on the way. After arriving in Waco around 3 :30 p. m., another half-gallon of wine was purchased and they continued to drink. At approximately 9:30 p. m., they drove to the Ebony Motel, in company with Shelton’s common-law wife. After parking the car, all of the parties except appellant got out and went into the motel. Appellant was left in the car on the back seat. At such time, in the opinion of the witness Shelton, appellant was intoxicated. When Shelton returned a few minutes later, the Oldsmobile was gone and also the appellant.

At approximately 10:20 p. m. on the night in question, a 1959 red-and-white Oldsmobile, which was being driven west on Elm Street in the city of Waco, collided head-on with a 1956 Pontiac station wagon in which Mr. and Mrs. Luther Alton Cagle and their two teen-age children were riding. In the collision, Mr. and Mrs. Cagle were killed and the two children injured. The collision occurred in the Pontiac’s lane of traffic.

A witness, Sam Fuller, Jr., testified that he saw the image of one person in the Oldsmobile when it passed him, traveling in the same direction, before the collision; that the Oldsmobile was in his line of vision at all times; and that he did not see anyone get out of the Oldsmobile.

There was also evidence that the Oldsmobile had struck another vehicle on Elm Street prior to the collision with the Pontiac.

Immediately after the collision, appellant was found lying on the front floorboard of the Oldsmobile, with his head up underneath the dashboard on the right side and his feet underneath steering wheel near the brake pedal and accelerator. At such time, appellant had cuts on his face and was bleeding. A gallon wine bottle, practically empty, with the cap off, was found on the front floorboard. A wet spot was on the floor near the bottle and there was a strong odor of alcohol in the car.

Witnesses who observed appellant at the scene expressed their opinion that he was drunk.

Dr. George W. Berry, who treated appellant at the hospital, testified that he had a strong odor of alcohol on his breath. At such time, appellant was suffering from injuries to his face, upper eyelid, and mouth, and was bleeding from those areas. He also had a cut on the left knee and an X-ray revealed a hairline fracture of the bone above the tooth line. In describing appellant’s condition at the hospital, Dr. Berry testified that he was “stuperous” and in an “apparent state of intoxication.” He further stated that appellant’s stuperous condition was not caused from his injuries and that he found no brain damage. He expressed his opinion that at such time appellant was intoxicated.

Appellant did not testify but called as a witness Dr. Carl Friedman, a specialist in the field of neurology and psychiatry, who based his testimony upon certain hypothetical questions propounded to him.

In response to the hypothetical questions, Dr. Friedman testified that appellant’s stu-perous condition could have been caused from a blow to the head and that one could not conclude, beyond a reasonable doubt, that he was intoxicated.

The witness Betty Crawford was also called, and testified that she witnessed the collision from where she was sitting on her front porch and that immediately after the collision she saw someone walk from behind the Oldsmobile.

Witnesses were also called who testified that they were acquainted with appellant and that they had never seen him drive an automobile.

We overrule appellant’s contention that the evidence is insufficient to support the conviction because the state failed to prove that he was the driver of the automobile and that he was intoxicated.

The evidence of appellant’s presence in the automobile, alone, immediately after the collision, with his feet under the steering wheel, was sufficient proof that he was the driver of the vehicle. Sandford v. State, 169 Tex.Cr.R. 388, 334 S.W.2d 184; Harrison v. State, 171 Tex.Cr.R. 329, 350 S.W.2d 204.

The opinions expressed by the witnesses of appellant’s intoxication and the other facts and circumstances were sufficient to support the jury’s finding on this issue.

This case is distinguishable, upon the facts, from Vasquez v. State, 166 Tex.Cr.R. 89, 311 S.W.2d 828, and Thurman v. State, 167 Tex.Cr.R. 21, 317 S.W.2d 737, cited by appellant, where the opinions of the witnesses were based upon facts as consistent with injury as with intoxication. In the present case there is the opinion testimony of one witness that appellant was intoxicated before the collision in which he received the injuries. Also there was a dispute in the testimony as to whether appellant was unconscious or merely in a stupor after the collision. Further, there is the testimony of Dr. Berry that appellant’s injuries did not cause his stuporous condition.

We also overrule appellant’s contention that the court erred in refusing to charge the jury on circumstantial evidence because there was no direct evidence that he was driving the automobile at the time of the collision.

It is the rule that when the facts proved are in such close juxtaposition to the main fact sought to be proved as to be equivalent to direct testimony, a charge on circumstantial evidence is not required. Smith v. State, 161 Tex.Cr.R. 620, 273 S.W.2d 623; Cave v. State, 161 Tex.Cr.R. 107, 274 S.W.2d 839.

The facts in the instant case are in such close juxtaposition to the fact sought to be proved as to he equivalent to direct evidence that appellant was driving the automobile at the time of the collision.

Error is urged to an instruction given by the court in response to a note from the jury requesting the testimony of a witness in the case.

At the trial, a portion of the testimony of the appellant’s witness Betty Crawford, given at a former trial, was read to the jury. While the jury was deliberating upon a verdict, a note signed by its foreman was sent to the court which read:

“The jury in deliberation of the Pedro Vasquez trial request all photographs entered as evidence. Also a copy of the previous trial testimony of Betty Crawford as read by the Court Reporter.”

In response thereto the court instructed the jury as follows:

“Members of the Jury:
“The Court has received the following communication from the jury:
“ ‘The jury in deliberation of the Pedro Vasquez trial request? all photographs entered as evidence. Also a copy of the previous trial testimony of Betty Crawford as read by the Court Reporter. James E. Gross, Foreman.’
“In response to your request stated above, the bailiff is instructed to carry the photographs to the jury room for your use. A copy of the previous trial testimony of Betty Crawford as read by the court reporter will not be supplied to the jury.”

Appellant objected to the court’s instruction because it did not inform the jury that it could have the witness’s testimony read to it and also that it could have that portion of the witness’s testimony read about which it was in dispute.

Art. 36.28 of the Vernon’s Ann.1965 Code of Criminal Procedure provides, in part, as follows:

“In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness [sic] testimony or the particular point in dispute, and no other * *

The jury did not indicate that it was in dispute as to any portion of the witness’s testimony. We know of no authority which required the court to direct the jury’s attention to the provisions of the statute. We perceive no error.

Error is urged to the court’s action in permitting Officer Horton to testify on redirect examination that, based upon his investigation, he determined that Sammy Shelton was not in the Oldsmobile at the time of the collision. Appellant objected to the testimony on the ground that it invaded the province of the jury and called for a conclusion of the witness.

The record reflects that on prior cross-examination of the witness, appellant had inquired if he had information that Sammy Shelton was in the car and if he believed it. The witness had answered that he did have such information and checked on it. Under the record it appears that appellant had gone into the matter and he therefore cannot complain of the state’s pursuit of the same on redirect examination. See: Art. 38.24, Vernon’s Ann.C.C.P. of 1965.

Appellant’s remaining point of error is that the trial court erred in unduly limiting his right to fully cross-examine four of the state’s witnesses and thereby denied him the right to fully confront the witnesses against him.

We have carefully considered the court’s ruling made on appellant’s cross-examination of the witnesses and find no abuse of discretion. The point is overruled.

The judgment is affirmed.


author: McDONALD, Presiding Judge. MORRISON, Presiding Judge. MORRISON, Judge. BELCHER, Judge. MORRISON, Judge

text:
    R. C. HULLUM, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39563.
    Court of Criminal Appeals of Texas.
    June 1, 1966.
    On Rehearing Nov. 30, 1966.
    On Second Rehearing March 8, 1967.
    On Further Rehearing May 24, 1967.

      Frank Maloney, Tom Cowden, Austin (both on appeal only), for appellant.
    Wallace Shropshire, County Atty., Donald H. Lane, Asst. County Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDONALD, Presiding Judge.

The offense is theft by false pretext; the punishment, 30 days confinement in jail.

The evidence reveals that prior to April 15, 1965, appellant was employed as a deputy sheriff of Travis County, and that he resigned on that date and was thereafter employed by Central Investigation Agency, a corporation engaged in the business of making bail bonds and private investigations.

During the period from April 19 to April 22, 1965, two sons of the complaining witness, Mrs. J. E. Wimberley, were being held by the juvenile authorities of Travis County as the suspected perpetrators of certain burglaries. In response to overtures made by Larry Lane, an employee of appellant who visited Mrs. Wimberley at her home, she had agreed to consult appellant, who Mr. Lane said “could help the boys.” The following morning appellant and his employee went to the home of the complaining witness and escorted her to appellant’s office, where appellant and Mrs. Wimberley “talked about the boys,” and appellant “said he could get them out,” and also indicated he would keep the oldest boy from “going to Gatesville.” A fee of $65.00 for appellant’s services was agreed upon by these two parties, after which agreement appellant called the Juvenile Home. A brief telephone conversation ensued out of the hearing of Mrs. Wimberley, following which appellant instructed her to “Go pick the boys up,” informing her that they were being probated to him. Mrs. Wimberley testified that “He told me to act like I was surprised that they were getting out.” Mrs. Wimberley then went to the Juvenile Home, and her two sons were released from custody. She testified that although the juvenile authorities explained to her that the boys were released to her, she still thought “they were probated to him (appellant), too.”

Mrs. Wimberley thereafter made two payments of $10.00 each to appellant, reducing her balance owed to $45.00, but having been persuaded by her sons that appellant had nothing to do with their being released, she refused to make further payment. As a result of this action, she received a letter, dated June 23, 1965, which was signed by an Austin attorney, and which stated:

“The Central Investigating Agency, Incorporated, has turned over your account to me for collection. On May 22, 1965 you incurred a bill for sixty-five dollars ($65) for services rendered by the agency. The balance due and owing is now forty-five dollars ($45). If this balance is not cleared up by June 30, 1965, I will advise my client to bring suit against you in Small Claims Court.”

Upon receipt of this letter, Mrs. Wim-berley consulted the juvenile authorities, and an investigation was subsequently conducted of this matter, which led to the charge upon which appellant now stands convicted in this cause.

Mr. Jack Harrell testified, and appellant stipulated, that he was the juvenile authority with whom appellant had the telephone conversation mentioned above. He testified that he did not tell appellant the boys were to be released to him; that appellant’s telephone call bore no influence upon the decision to release the boys, and that he informed appellant that it had already been determined that the boys were to be released in the custody of their mother.

A business card of R. C. Hullum, Jr. was introduced in evidence, the reverse side of which bore the notation: “5-1-65 — Rec. from B. Wimberly — $10.00 on Rill (signed) R. C. Hullum, Jr.” Mrs. Wimberley testified that this card was the receipt she received from appellant as evidence of the first $10.00 payment.

We find the evidence sufficient to sustain the conviction, and, in so finding, overrule appellant’s contentions that the evidence fails to support findings that appellant obtained the money by a false pretext; that the complaining witness was induced by such false pretext to part with the money; or that appellant had the intent to defraud the complaining witness. The circumstances surrounding the transaction, and the representations made by appellant to the complainant as set out above in the summary of facts, are sufficient to raise the issue of theft by false pretext. The state’s chief witness was the complainant. It is true that there was testimony tending to impeach her credibility, and that many of her answers were equivocal or uncertain. The jury nevertheless was authorized to believe that witness, and there was other evidence and testimony which corroborated her story. The facts support a finding that appellant obtained $10.00 from the complainant upon the false pretext that he could and did aid in effecting the release of her sons from detention by the juvenile authorities.

Trial was conducted in the County Court at Law No. 2 of Travis County upon transfer of the cause from the 147th District Court of Travis County. Appellant attacks the jurisdiction of the county court, contending that there is no constitutional or statutory authorization for trial in a county court upon indictment, and that trial in county court can be initiated only upon an information or affidavit.

To support his contention that prosecution in county court upon an indictment is unconstitutional, appellant relies upon Article V, Section 17 of the Texas Constitution, Vernon’s Ann.St., which provides in part that “prosecutions may be commenced in said court by information filed by the county attorney, or by affidavit, as may be provided by law.” He points out that, prior to 1925, Articles 448 and 449 of the Code of Criminal Procedure authorized prosecution in the county court upon indictment or information, but that these statutes were repealed by omission when the Code of Criminal Procedure, 1925, was enacted. He cites Ethridge v. State, 76 Tex.Cr.R. 41, 172 S.W. 784, wherein it was stated that an information “shall be filed” as a prerequisite to trial in the county court. He concludes that since the repeal by omission of Articles 448 and 449, supra, the requirement of prosecution by information in misdemeanor cases in county courts is mandatory.

We find no cases in point. It would appear that a similar contention was summarily overruled in Quarles v. State, Tex.Cr.App., 385 S.W.2d 395, however a review of that record reveals that the issue there involved was sufficiency of the transfer, and whether the document upon which that appellant was prosecuted was an indictment or an information.

The traditionally preferred form of accusatory pleading is the indictment returned by a grand jury, for the reason that such a procedure provides “a means of protection to the citizen against the dangers of a false accusation, or the still greater peril of a sacrifice to public clamor.” In re Wilcox, 153 Misc. 761, 276 N.Y.S. 117, 121; see the Interpretative Commentary to Article I, Section 10 found at 1 Vernon’s Ann.Tex. Const. pp. 267, 271. Certainly an accusation based upon the investigation and collective conclusion of twelve unbiased citizens provides greater insurance against mistaken or malicious prosecution than does prosecution upon information filed upon the oath of one person. For this reason, pleading by indictment is a requisite to prosecution for the more serious crimes in the federal courts, Fifth Amendment, Constitution of the United States; in the courts of this state, Article I, Section 10, Constitution of the State of Texas, and in almost all other jurisdictions in the United States, 42 C.J.S. Indictments and Informations § 9, p. 838. As a matter of practicability, such protection has not been extended to misdemeanants.

Article V, Section 17 of the Texas Constitution provides in part:

“Prosecutions may be commenced in said court by informat'on filed by the county attorney, or by affidavit, as may be provided by law. Grand juries empanneled in the District Courts shall enquire into misdemeanors, and all indictments therefor returned into the District Courts shall forthwith be certified to the County Courts or other inferior courts, having jurisdiction to try them for trial; * *”

From this provision, it can be seen that prosecutions in the 'county court may be commenced on information, or, in some cases, by affidavit. The grand jury is nevertheless authorized to return indictments for misdemeanor offenses. It would necessitate a tortured construction of the law to conclude that such a constitutionally-authorized indictment, when transferred, as provided, to a court having jurisdiction of the offense, would not be sufficient as an accusatory pleading, while an information charging that offense would be satisfactory. We do not interpret the law in this manner. We agree with appellant “that the county court cannot acquire jurisdiction or try a misdemeanor where it originated in the county court until an information has been filed,” Davis v. State, 150 Tex.Cr.R. 463, 202 S.W.2d 943, but we conclude that trial in the county court upon a properly transferred indictment does not violate an accused’s constitutional rights.

This interpretation is supported by the additional language in Article V, Section 17, providing that “if such indictment be quashed in the County, or other inferior court, the person charged, shall not be discharged if there is probable cause of guilt, but may be held by such court or magistrate to answer an information or affidavit.” This must be interpreted to mean that where an indictment has been returned and transferred to a county court, prosecution will be based on that indictment unless it is quashed.

The authorities cited by appellant support the proposition that one accused of a misdemeanor is entitled to at least a written accusatory pleading in the form of an information. They do not support the conclusion that, trial in the county court upon a properly transferred indictment violates the Constitution.

For the first time in his motion for new trial, appellant also contends that the trial court lacked jurisdiction over this cause because the indictment was not transferred in accordance with law. No plea to the jurisdiction was filed, and appellant’s motion to quash the indictment did not challenge the order of transfer. Because formal objection was not timely made, appellant’s objection that there is no record that the indictment was ever presented by a grand jury or received by the district court cannot be considered. Williams v. State, 167 Tex.Cr.R. 503, 321 S.W.2d 72; Poe v. State, 98 Tex.Cr.R. 177, 266 S.W. 417; Adams v. State, 93 Tex.Cr.R. 249, 246 S.W. 661.

At the hearing on appellant’s motion for new trial, these facts were adduced. The order for transfer, when signed by the district judge, directed that the cause be transferred to “the County Court at Law of Travis County.” The county clerk’s office refused to file this order and returned it to the district clerk because the order failed to specify whether the cause was transferred to the County Court at Law No. 1 or the County Court at Law No. 2. The deputy district clerk, without authority of the district judge, inserted “No. 2” immediately after the words, “County Court at Law.”

Appellant contends that this altered order is, in effect, no transfer order at all, and without an order of transfer, the County Court did not acquire jurisdiction. He argues that even if other defects in the transfer cannot be raised on appeal because of his failure to preserve error, he cannot be said to waive that which he did not know, and that this defect, not apparent on the face of the order, and not discovered until the hearing on his motion for new trial, is before this Court for review. We find no substantial defect in the order. A reading of Chapter 69, Section 6 of the General and Special Laws of the 59th Legislature shows that even if the district judge had designated to which of the two courts the cause was transferred, such designation would have been ineffective, inasmuch as •the cause, notwithstanding such designation, could have been tried in either court, by either judge, in either courtroom. The order as signed by the district judge was in substantial compliance with Article 419, Code of Criminal Procedure, 1925, then in effect. Dittforth v. State, 46 Tex.Cr.R. 424, 80 S.W. 628; Johnson v. State, 28 Tex.App. 562, 13 S.W. 1005.

By formal bill of exception, appellant contends that his conviction of theft by false pretext upon a general theft indictment is a deprivation of constitutional rights granted by Article 1, Section 10 of the Constitution of the State of Texas, and the Sixth and Fourteenth Amendments of the Constitution of the United States, because such pleading constitutes a denial of his right to be apprised of the nature and cause of the accusation against him, and that his motion to quash the indictment should have therefore been granted. This Court overruled this identical contention in Cameron v. State, opinion delivered February 23, 1966, Tex.Cr.App., 401 S.W.2d 809. We here adhere to our holding therein stated and find no merit in appellant’s formal bill.

Appellant urges that there was a fatal variance between the proof and the allegations in the indictment that the money was the corporeal personal property of Mrs. J. E. Wimberley, and that it was taken from the possession of Mrs. Wimberley. He contends that the record shows that Mrs. Wimberley was a married woman; that there is no evidence in the record to show that the money was her separate property; and that where the evidence fails to show that the property is the separate property of the wife, under the circumstances here-involved, ownership must be alleged in the husband.

The record discloses no relationship or contact between appellant and Mr. Wimber-ley. The evidence shows that from the initial solicitation until the indictment of appellant, appellant and Mrs. Wimberley were the principal parties to this transaction. She was the one attempting to secure the release of her sons; she was contacted by appellant’s employee; she negotiated to have appellant effect their release; she was the person induced to pay appellant for the services he allegedly had performed; it was her name in which the account was. carried on the business records of the investigating organization; it was Mrs. Wim-berley who paid the money to appellant and to whom he gave a receipt for that money;, and it was to Mrs. Wimberley that the threatening letter was sent when she refused to pay more money.

It is the obvious deduction that the money was taken from the possession of Mrs. Wimberley.

Article 402, Code of Criminal Procedure. 1925, now Article 21.08, Vernon’s Ann.C. C.P., states, in part:

“Where one person owns the property, and another person has the possession ■of the same, the ownership thereof may be alleged to be in either.”

The primary purpose of the indictment being to apprise the accused of the nature of the charges against him, appellant cannot complain that ownership was alleged in the person from whom he obtained the money he was alleged to have stolen, and with whom he had dealt throughout the transaction upon which the charge was based.

Appellant’s many other formal and informal bills of exception have been considered. We find no reversible error presented by any of them.

The judgment is affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

MORRISON, Presiding Judge.

Our opinion on appellant’s motion for rehearing is withdrawn. In addition to what we said originally, we call attention to the following cases: Lenzen v. State, 112 Tex.Cr.R. 297, 16 S.W.2d 234; Horton v. State, Tex.Cr.App., 20 S.W.2d 1110; Smith v. State, Tex.Cr.App., 115 S.W.2d 685; Litchfield v. State, 147 Tex.Cr.R. 201, 179 S.W.2d 507; Bell v. State, 170 Tex.Cr.R. 508, 342 S.W.2d 444; and Newsom v. State, Tex.Cr.App., 372 S.W.2d 681.

Each of the above cases is authority for the rule that any complaint of irregularity in the transfer of a case from the court where it was filed to the county court where it was tried should have been entered before announcing for trial. We find no complaint as to the order of transfer until the motion for new trial, and hence the rule announced by the cases cited is applicable to the case at bar and is controlling.

We noted in our original opinion that there was testimony tending to impeach the complainant and that many of her answers were equivocal or uncertain, but held the evidence sufficient to sustain a finding that appellant obtained $10.00 from the complainant upon his false representation that he could get her boys out of the Juvenile Home.

Attached to appellant’s motion for rehearing is an affidavit of the complainant shown to have been made a few days after our original opinion affirming this conviction, which we deem sufficient, if true, to present the question of whether the conviction was obtained by the use of false evidence, known to be false by the police officer named in said affidavit. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217; Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Curran v. State of Delaware, 259 F.2d 707 (3d Cir.) cert. denied, 358 U.S. 948, 79 S.Ct. 355, 3 L.Ed.2d 353; Jones v. Com. of Kentucky, 97 F.2d 335 (6th Cir.).

A federal claim of denial of due process of law having been presented, we have decided that a hearing should be held in the trial court while the appeal is pending and that the federal claim of denial of due process be determined prior to the final disposition of said appeal. Such procedure is consistent with the 1965 Code and Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.

We suspend further consideration of appellant’s motion for rehearing for 90 days and direct that such hearing be had and that the evidence adduced, together with the trial court’s findings, be forwarded to this Court within such 90 days.

SECOND OPINION ON STATE’S MOTION FOR REHEARING

MORRISON, Judge.

Pursuant to the mandate contained in our opinion dated November 30, 1966, the Honorable David S. McAngus, as Judge of the County Court at Law No. 2, held a hearing on five days in December, and has forwarded to this Court in due time, three volumes consisting of 599 pages of testimony taken at such hearing together with his finding of fact based upon such hearing. We have examined the record with care and conclude that it supports the Judge’s finding and that this appellant has not been denied due process and that his conviction was not obtained by the use of false evidence known to be false by the police officer named in the affidavit mentioned in our prior opinion.

This claim now having been settled, the State’s motion for rehearing is granted and the judgment is affirmed.

It is so ordered.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

BELCHER, Judge.

This case was assigned, on appellant’s motion for rehearing, to the writer as a Commissioner for consideration and recommendation of its disposition. After studying the record I prepared an opinion in which it was recommended that the case be reversed and remanded. This opinion was approved by the court and delivered October 12, 1966, but was thereafter withdrawn in the opinion on the State’s Motion for Rehearing delivered November 30, 1966.

On January 1, 1967, I became a constitutional member of this court.

The former opinion delivered October 12, 1966, reversing and remanding this case reads as follows:

“The trial was had on October 18, 1965, in the County Court at Law No. 2 of Travis County, on an indictment returned and filed in the 147th District Court of Travis County, Texas, charging the appellant with the offense of misdemeanor theft of ten dollars in money.
“Appellant contends that the trial court lacked jurisdiction over this cause on the ground that the indictment was not transferred to it from the 147th District Court in accordance with law.
“This contention was first raised in the motion for a new trial. At the hearing on the motion these facts were adduced. The order for transfer, when signed by the district judge, directed that the cause be transferred to ‘the County Court at Law of Travis County.’ The county clerk’s office did not file this order but returned it to the district clerk because the order failed to specify whether the cause was transferred to the County Court at Law No. 1 or County Court at Law No. 2 of Travis County, these being the only County Courts at Law of Travis County. The deputy district clerk, without the authority and knowledge of the district judge, inserted ‘No. 2’ immediately after the words, ‘County Court at Law,’ in the order, and returned it to the county clerk.
“Art. 5, Sec. 17, Tex.Const., in part reads as follows:
“ ‘Grand juries empanweled in the District Courts shall enquire into misdemeanors, and all indictments therefor returned into the District Courts shall forthwith be certified to the County Court or other inferior courts, having jurisdiction to try them for trial.’ ”
“Art. 419, C.C.P., provides:
“ ‘Upon the filing of an indictment in the district court which charges an offense over which such court has no jurisdiction, the judge of such court shall make an order transferring the same to such inferior court as may have jurisdiction, stating in such order the cause transferred and to what court transferred.’ ” (Now Art. 21.26, C.C.P.)
“Both County Courts at Law Nos. 1 and 2 of Travis County have jurisdiction in misdemeanor theft cases. Art. 1970-324 and 324a, R.C.S.
“Included in the inferior courts referred to in the above provisions of the constitution and the statute are the county court, county courts at law, justice courts and corporation courts.
“ ‘County courts have original jurisdiction in misdemeanor cases when the fine to be imposed exceeds $200, except where jurisdiction has been conferred on district courts or criminal district courts.
“ ‘Justices’ courts have original jurisdiction where the punishment may be by fine not in excess of $200, except where the offense involves official misconduct. * * *
“ ‘The corporation court and the justice of the peace have concurrent jurisdiction in cases arising under criminal laws, committed within the corporate limits, if the maximum fine is $200.
“ ‘The jurisdiction of justices’ courts over cases in which the fine may not exceed $200 is not exclusive; county courts have original concurrent jurisdiction with justices’ courts of misdemeanors cognizable in the latter courts, except where it has been otherwise provided, as in cases of misdemeanors involving official misconduct.
“ ‘The amendment of the Penal Code provision providing that the theft of property of the value of $5 or less is to be punished by a fine not exceeding $200 has been held not to deprive the county court of concurrent jurisdiction with the justice’s court.
“ ‘County courts at law and courts known as county courts at law No. 2 have been established in some counties and invested with original criminal jurisdiction. County courts of some counties have been divested of their criminal jurisdiction and such jurisdiction has been conferred on county courts at law.’ ” 16 Tex.Jur.2d 348, Sec. 193, and 341, Sec. 186.

“The judge of the district court in which an indictment is returned charging a misdemeanor offense over which such court has no jurisdiction has the duty of deciding the court or courts having jurisdiction of the offense charged, and the judge alone has the duty of deciding to what court he will transfer the cause, as the statute directs that ‘the judge * * * shall make an order transferring the same * * * stating in such order * * * to what court transferred.’

“The numerous misdemeanor offenses and the wide range of courts which may have jurisdiction of them impose the duty upon the judge of the court in which the misdemeanor indictment was returned of deciding to which one of said courts he will transfer the case. Concurrent jurisdiction for the same misdemeanor offense charged in an indictment may be in a county court, one of several county courts at law, a justice court, or a corporation court.

“The insertion by interlineation of ‘No. 2’ following ‘County Court at Law’ in the order previously signed by the judge was unauthorized. Although the order of transfer relied on is regular on its face, the evidence adduced on the motion for new trial and as certified in a formal bill of exception shows that such order is not the order as signed by the judge, and that the interlineation was made without the judge’s knowledge. The deputy district clerk had no power to materially change the order of transfer and make it express something that the judge had not pronounced.
“The transfer of this case was authorized only by virtue of the power and authority conferred by the provisions of the constitution and the statute mentioned. This being true, it inevitably follows that under the statute, the transfer of this case to an inferior court having jurisdiction to try it was alone at the option and within the exercise of the right given the district judge to decide to what court the cause would be transferred.
“47 Tex.Jur.2d 149, Sec. 114, reads as follows:
“ ‘It is a general rule that public duties must be performed and governmental powers exercised by the officer or body designated by law; they cannot be delegated to others. This is particularly true of duties that are judicial in their nature, or that call for the exercise of reason or discretion.’ ”

“From the record, it is concluded that the order relied on in transferring this case to the County Court at Law No. 2 of Travis County was void. The unauthorized alteration of the order made in contravention of the statute was one of substance and constitutes error that may be raised for the first time after verdict.”

We were in error in withdrawing the foregoing opinion granting appellant’s motion for rehearing, and in applying the rule that any complaint of irregularity in the transfer of the case from the district court to County Court at Law No. 2 should have been raised prior to trial. It is apparent from the record that neither appellant nor his counsel was aware of the fact that the district judge had not authorized the insertion in his order transferring the case to the County Court at Law “No. 2” so as to make it appear to be his order transferring the case to County Court at Law No. 2 of Travis County where the case was tried, until the hearing on their motion for new trial. The state does not contend otherwise.

We further observe that we were in error in concluding that the equivocal, uncertain and conflicting testimony of the complainant as to representations made by appellant prior to the release of her sons from Gardner House and the undisputed fact that she voluntarily paid appellant $10 several days after the boys had been released and she had been told by the juvenile officer that they were being probated to her, was sufficient to sustain a finding that appellant obtained the $10 from the complainant “upon his false representation that he could get her boys out of the juvenile home.” She knew that the boys were out when she paid appellant the $10.

The affidavit, signed statement and oral statements attributed to complainant, as well as her testimony at the trial and at the hearing on appellant’s claim of denial of due process, convince us of the correctness of her statement that she was not sure just what R. C. Hullum told her.

For the reasons stated, appellant’s second motion for rehearing is granted and the judgment is now reversed and the cause remanded.

MORRISON, Judge

(dissenting).

This Court has had this case under submission for more than a year, and five opinions have been written prior to the one we hand down today. One of the grounds for reversal set forth in the majority opinion is that complainant’s testimony was “equivocal, uncertain and conflicting.” In this connection I point out that prior to this opinion this Court found no difficulty in understanding complainant’s testimony.

A jury has heard the complainant testify, and they believed her testimony. Judge McAngus has heard her testify twice and has certified to this Court that she “testified truthfully on the main trial.”

I find myself in agreement with Mr. Justice Reed of the Supreme Court of the United States when he said in Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S.Ct. 134, 138, 83 L.Ed. 104, 109, “It is just as important that there should be a place to end as that there should be a place to begin litigation.” In the case at bar, in my judgment, the “place to end” has long since passed.

I respectfully dissent to the granting of appellant’s second motion for rehearing.


author: DICE, Judge. MORRISON, Judge.

text:
    Billy Jack McDONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 40354.
    Court of Criminal Appeals of Texas.
    May 17, 1967.
    L. Alward White, Jr., Amarillo, for appellant.
    Naomi Harney, County Atty., Bill R. Sherbert, Asst. County Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for misdemeanor theft; the punishment, two years in jail.

Two grounds of error are urged by appellant in his brief filed in the trial court.

In his first ground, he insists that the court erred in admitting evidence obtained as the result of an illegal search and seizure.

The evidence of which appellant complains relates to the search of his person and that of his companion, L. V. Myers, following their arrest — by two police officers of the city of Amarillo, for vagrancy. In the search, certain articles of property were found which the proof showed had been recently stolen from the complaining witness.

The question presented is whether appellant’s arrest, without a warrant, for vagrancy was valid.

The facts relative to the arrest show that on the day in question Officers Bartz and Blackwell, while on patrol, received a call shortly before 4:45 p. m. from a police dispatcher that two “subjects” were walking in the 400 block of West Fifth Avenue and were carrying a lady’s purse. The officers proceeded to the 500 block, where they saw appellant and a companion, Myers, walking together. They got out of the patrol car and asked appellant and Myers about “their employment.” Both appellant and Myers replied that they were not employed at the time. When asked how long it had been since they were last employed, neither could give an immediate answer. Appellant said he had been working for a party in Amarillo and, when questioned about when, and what type of work, the officers were informed that he planned to go to work “in the future, the next day or so.” Appellant stated that it had been “about ten days” since he had been gainfully employed but that he did not know “exactly'for sure how long it had been.”

As to Myers, the officers were unable to determine how long he had been in Amarillo but did ascertain that he had not been employed while in the city. The officers ascertained from talking to appellant and Myers that they had a room in one of the hotels.

Officer Blackwell testified that:

“We determined that they had no visible means of support and were not working, and arrested them for vagrancy, and searched them.”

Both officers testified that when they arrested appellant and his companion for vagrancy they had no information or report of any stolen property.

This testimony is undisputed and the record does not support appellant’s contention that his arrest for vagrancy was made by the officers as a pretext for the search.

Recently, in Korn v. State, Tex.Cr.App., 402 S.W.2d 730, this court held that the arrest of a defendant, without a warrant, for vagrancy was authorized by the statutes of this state. Art. 607, Vernon’s Ann.P.C., Arts. 998 and 999, Vernon’s Ann.Civ.St., and Art. 212, Vernon’s Ann.C.C.P. of 1925, now Art. 14.01 of the 1965 Code.

Under the facts here presented, appellant’s arrest for vagrancy, without a warrant, was lawful. The ground of error is overruled.

In his second ground of error, appellant insists that the court erred in refusing to grant a new trial because of jury misconduct.

In his motion for new trial, appellant alleged, in paragraph 4, the following:

“The verdict as to the punishment to be assessed was not decided by a fair expression of the jurors in that they thought that defendant could be released in a little over a year or in 6 months or some other time less that the amount of time in jail assessed as punishment, and as a result they sentenced him to 2 years.”

Attached to the motion was the affidavit of one juror and the affidavit of appellant’s counsel relative to the statement of another juror who refused to sign an affidavit.

At the hearing on the motion, all six jurors testified.

From their testimony it was shown that more than one ballot was taken in reaching a verdict as to the punishment to be assessed in the case. Some of the jurors testified that there were only two ballots taken, while others testified there were three.

On the first ballot, four jurors voted for two years and two jurors voted for a lesser term. In the discussion the foreman mentioned a newspaper article which had stated that sentences were not served in full and that there was some time off for good behavior and other credits. At such time there was a general discussion to the effect that it was “common knowledge” that prisoners get credit for good behavior. The jurors then had a general discussion relative to how long a person would have to serve if he were sentenced to two years, but no one purported to knpw. In the discussion it was mentioned that if appellant were given two years “he could probably get out in a little over a year for good behavior or something like that.”

From the record it does not appear that any juror stated as a fact the length of time appellant would be required to serve if his punishment were assessed at two years. To the contrary, no juror purported to know the law. Such fact distinguishes the case from Mays v. State, 167 Tex.Cr.App. 339, 320 S.W.2d 13, cited by appellant, in which case there was a positive misstatement of the law made by one of the jurors.

It should be noted that it is common knowledge that a prisoner in jail may receive commutation of time, not to exceed one-third of the original sentence, for good conduct. Art. 5118a, Vernon’s Ann.Civ.St.; Cooper v. State, Tex.Cr.App., 365 S.W.2d 793.

The statement by one of the jurors that the reason he voted for two years was because he thought appellant would only have to serve “about six months” is not a ground for reversal, as a juror is not permitted to explain or impeach his verdict. Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757; Lewis v. State, 169 Tex.Cr.R. 553, 336 S.W.2d 154. The ground of error is overruled.

The judgment is affirmed.

CONCURRING OPINION

MORRISON, Judge.

While I agree to the affirmance of this conviction, my dissent in Korn v. State, supra, requires that I discuss my reasons for so agreeing.

The two officers received information from a police radio dispatch that two men, one tall and slender and the other somewhat shorter and heavier set, were seen carrying a woman’s purse. Within three minutes the same officers saw two men, who fit the exact description which had been given them, one block from where they had reportedly been seen carrying a woman’s purse. The two men were “the only two parties immediately visible on the street at that time”, but no longer had the purse. Upon questioning, the suspects were unable to give an explanation as to their means of support and their identity, and one of them reported that he had been on a week’s drunk. The officers were then, in my judgment, in possession of sufficient information to authorize their arrest on probable cause for vagrancy.


text:
    James Leon FRENCH, Appellant, v. The STATE of Texas, Appellee.
    No. 40329.
    Court of Criminal Appeals of Texas.
    May 10, 1967.

      Edgar L. Berlin, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., John R. De-Witt, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, life imprisonment in the Texas Department of Corrections.

The record reveals that on October 8, 1965, Beaumont City police officers, answering a radio call, arrived at the residence of R. D. Russell. They found Russell lying on a bed in a bloody condition, appearing to have been badly beaten. Russell was taken to a hospital where he died two days later.

On December 30, 1965, appellant was indicted for the murder of Russell by the means of:

“ * * * striking, hitting and beating him with his fists and kicking and stomping him with his right foot and an artificial left leg, being worn at the time as a substitute leg because defendant’s real leg was: amputated.”

State’s witness Florida Van Arsdale, testified that he, the appellant, appellant’s wife, Otto Herman Meyers, and a man named Poole were all drinking at the Van Arsdale’s home on the morning of October 8, 1965. At such time the conversation centered around the fact that the deceased had that morning reported to the police that Meyers or the appellant, or both of them, had stolen, a pressure cooker from him. Van Arsdale testified he heard appellant say to Meyers, “I ought to go around over there and get that no good bastard and whip his ass”, as well as other similar statements. Sometime after the departure of the appellant and Meyers, and as a result of these remarks, Van Arsdale went to deceased’s home where he found him in a bloody condition. He testified, without objection, that the deceased said, “Leon and Herman done it.”

William McKenzie was present when the beating took place and testified he saw appellant and Meyers “repeatedly kick” the deceased and that the kicking seemed to last ten to fifteen minutes; that appellant had used both legs in the attack.

Doctor H. B. Williford testified the cause of death was due to a cerebral concussion and internal hydrocephalus, traumatic.

Testifying in his own behalf, appellant stated he had gone to the deceased’s residence in the company of his wife, and Meyers on October 8, 1965, to continue drinking. He admitted that he hit Russell, knocking him down when the deceased called him a liar, but testified this was the extent of any violence done by him, and that he did not kick the deceased. He stated that he saw Meyers beating the deceased and kick him once before he (the appellant) left the house. Appellant further admitted he stated upon leaving, “I will kill you, you. son-of-a-bitch, if you try to get me in trouble again”, but that he had no such intention. Appellant offered testimony that he was a “wino” and had over a hundred arrests for “drunk”. Police officers called hy appellant, testified that despite his drunk arrests, appellant did not have a reputation for being a violent person, or had ever shown any propensity for violence.

The Court charged on the law of principals.

Appellant’s sole ground of error is that the trial court erred in failing and refusing to grant his motion for mistrial when the following questions were propounded to him on cross-examination:

Q Have you ever been accused of using that leg on someone?
A No, sir.
Q Either on or off of it?
A No, sir.
Q Do you know a man by the name of Francis Ealy?
A Yes, sir.
Q He accuse you of it?”

At this point, appellant’s objection that the question was not material and not relating in time to the offense charged was sustained. At such time no other objection or request was made.

Thereafter, the State’s counsel asked appellant the following question:

“Q Your testimony is that you can’t use the leg to kick with ?
A Yes, sir.”

Subsequently, when appellant was re-called for further cross-examination, the following occurred:

“Q And that is not the first time you have ever hit anybody when you all were drinking?
A No.
And you have kicked before, too, haven’t you, Leon? ©
No, sir. >
When you would be drinking ? ©
No, sir. >
In fact, you use that leg real well, don’t you? ©
A In walking, yes, sir. Only when I am drinking and that’s why it gets me arrested a lot of times because I can’t haldle it good when I am drinking.
Q And you never have used that leg on anyone else?
No, sir. >
Either on or off? ©
That’s right. >
What about this man I asked you about before? ©
MR. BERLIN: If the Court please, I, object to that as there being no predicate laid as to time or place.
Q Within the last six months, have you used that leg, haven’t you, to—
MR. BERLIN: Now, if the Court please, the District Attorney knows that is inadmissible.
MR. LINDSEY: Your Honor, he is the one that is interposing this defense — never used that leg — never used it in violence— not even capable of—
THE COURT: Sustained.”

Thereafter, upon the request of appellant, the Court instructed the jury to disregard the question and any of its implications. The motion for mistrial was overruled.

Even if the defense’s testimony that despite at least 100 arrests for drunk, appellant was a peaceful alcoholic and not a man of violence, did not authorize the asking of such questions, when taken in connection with the appellant’s denial of the use of the leg on the deceased or anyone else, or that he was capable of kicking with it, a predicate was laid for the questions asked under the holdings of this Court in Smith v. State, Tex.Cr.App., 375 S.W.2d 299; Eloms v. State, 159 Tex.Cr.R. 471, 264 S.W.2d 725; Kemp v. State, 157 Tex.Cr.R. 158, 247 S.W.2d 398; Lampkin v. State, 47 Tex.Cr.R. 625, 85 S.W. 803. The State should have been allowed to refute such testimony.

In Kemp v. State, supra, a driving while intoxicated prosecution, questions propounded to appellant on cross-examination about prior convictions for intoxication were held proper, where the appellant in answering State counsel’s earlier question concerning the amount of intoxicating beverage he had drunk on the occasion in question answered that he had nothing to drink at all that day, that he did not drink at all, and had never drunk any intoxicating liquor of any kind.

In Lampkin v. State, supra, an abusive language prosecution, the State was permitted to prove that appellant had used profane language in the presence of other witnesses on another occasion where he had testified in his own defense that he did not swear on the occasion charged, and that he had never sworn in his life.

Even if we be wrong in this conclusion, it is observed that the appellant steadfastly denied the use of the leg on anyone else, the question relating to another man (Ealy) was never answered, and the jury was instructed to disregard. No further evidence was offered pertaining to this subject matter. We perceive no error.

In pronouncing the life sentence, it appears the trial court failed to give application to the Indeterminate Sentence Law (Article 42.09, Vernon’s Ann.C.C.P.). Therefore, the sentence is reformed to provide that the appellant shall be confined in the Texas Department of Corrections for not less than two years nor more than life imprisonment.

As reformed, the judgment is affirmed.


text:
    William SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 40257.
    Court of Criminal Appeals of Texas.
    April 19, 1967.
    Rehearing Denied June 7, 1967.

      John E. Cahoon, Sr., Houston,'for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Joseph P. Witherspoon, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for sodomy; the punishment, two years.

Trial was after January 1, 1966, under the 1965 Code of Criminal Procedure.

Two grounds of error are urged by appellant in his brief filed with the clerk of the trial court. He first complains that the court erred in admitting evidence of an act of sodomy between him and the prosecuting witness subsequent to the one alleged in the indictment, over the obj ection that it constituted proof of an extraneous offense.

The indictment charged that appellant committed the offense of sodomy on or about the 5th day of June, 1965.

At the trial, the prosecuting witness, a boy fourteen years of age on the date of the alleged offense, testified that on the 5th day of June, 1965, he accompanied appellant to his apartment, where appellant committed an act of oral sodomy upon him. Over objection, the witness was permitted to further testify that on the following day, June 6, 1965, appellant committed another act of sodomy upon him.

In Johns v. State, 155 Tex.Cr.R. 503, 236 S.W.2d 820, this court held that, in cases involving incest and rape under the age of consent, acts other than the one charged in the indictment were admissible as evidencing the probability of the charged act and the unnaturalness of the accused’s attitude toward the victim of his lust. The Johns case was followed in Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419, Earwood v. State, 161 Tex.Cr.R. 171, 275 S.W.2d 652, and other cases.

In Smith v. State, 170 Tex.Cr.R. 518, 342 S.W.2d 445, this court, in extending the rule to a case of sodomy, said:

“No reason exists why the rule should not apply to a sodomy case such as the one before us where the victim of the lust is a young boy, 13 years of age, when the acts are committed.”

In Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, and Rodriguez v. State, 170 Tex.Cr.R. 275, 340 S.W.2d 41, cited by appellant, the extraneous acts and offenses were committed upon persons other than the one named in the indictment and who were not present when the offense was committed for which the accused was on trial.

The ground of error is overruled.

In his second ground of error appellant complains of the court’s refusal to give a requested charge to the jury.

The requested charge is not shown to have been presented to the court in writing but was dictated to the court reporter by appellant’s counsel at the close of evidence on the issue of guilt.

Art. 36.15 of the 1965 Code, formerly Art. 659 of the 1925 Code, provides, in part:

“Before the court reads his charge to the jury, counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury. The court shall give or refuse these charges.”

It was the consistent holding of this court that, under similar provisions of Art. 659 of the 1925 Code, requested charges should be presented to the court in writing. The same was true as to objections to the court’s charge under Art. 658 of the code. Outley v. State, 162 Tex.Cr.R. 314, 284 S.W.2d 356; Nesbit v. State, 165 Tex.Cr.R. 336, 306 S.W.2d 901; Cedillo v. State, 165 Tex.Cr.R. 371, 307 S.W.2d 267; Waite v. State, 169 Tex.Cr.R. 484, 334 S.W.2d 816; Rodriguez v. State, Tex.Cr.App., 374 S.W.2d 234; Daltwas v. State, Tex.Cr.App., 375 S.W.2d 732.

The provisions of Art. 36.15, supra, did not change this requirement.

Art. 36.14 of the present code also provides that the defendant shall present his objections to the charge in writing.

We do not construe the provisions of Art. 40.09-4 of the 1965 Code giving effect to a transcription of the court reporter’s notes which are certified and included in the record on appeal as dispensing with the requirements of Art. 36.14, and 36.15, supra, that objections to the charge and requested charges be made in writing before the charge is read to the jury.

Appellant’s complaint to the court’s refusal to give his requested charge is not before us for review.

The judgment is affirmed.


author: SHARPE, Justice.

text:
    Bernard F. GILLIGAN, Appellant, v. L. A. GEARHART et al., d/b/a Gearhart Construction Company, Appellees.
    No. 258.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 23, 1967.
    Rehearing Denied May 18, 1967.
    Wm. j. Kershner, Houston, for appellant.
    George D. By field, of Ewers, Toothaker, Ewers, ¡Byfield & Abbott, McAllen, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from a take-nothing judgment rendered non obstante veredicto in favor of appellees who were defendants below. !

Appellant sued appellees upon a promissory note dated March 17, 1962 in the amount of $5,500.00 payable on or before March 17, 1963 to “L. R. Garrett d/b/a Modern Mausoleums Inc.” The note was assigned by Garrett to appellant.

The trial court submitted three special issues to the jury which were answered in substance that at the time appellant Bernard F. Gilligan acquired the note in question (1) it was complete and regular upon its face, (2) that he took it in good faith, and (3) that he did not have notice of an infirmity in the instrument or defect in the title of L. R. Garrett.

Appellees filed original and amended motion for judgment non obstante veredicto and alternatively a motion for new trial. The court granted appellees’ judgment non obstante veredicto and thereafter made and filed the following findings of fact and conclusions of law:

' “1. The note upon which Plaintiff has instituted suit was in fact marked Exhibit ‘A’ at the top and attached to a contract between the Defendants Gear-hart and Modern Mausoleums, Inc., a true and correct copy of such contract being attached to the Plaintiff’s Petition in the case and appearing in the evidence in the case.
“2. The Defendant, L. R. GARRETT, without being authorized to do so by the makers of the note, detached such note from the contract, obliterated the words ‘Exhibit A’ on the note, and transferred it to the Plaintiff, Gilligan, by endorsing it as follows:
T, L. R. Garrett, transfer, sell and assign all rights, title and interest in this note to B. F. Gilligan, and further guarantee payment with interest as appears on the face of the note.
S/ L. R. Garrett
S/ Ivan R. Brown’
“3. The construction of the mausoleum project in the City of Brownsville contemplated by the contract in evidence between Modern Mausoleums, Inc. and the Defendants Gearhart was never commenced and was abandoned as a project.
“4. There was in existence a corporation known as Modern Mausoleums, Inc., duly incorporated under the laws of the State of Texas, at all times pertinent. L. R. Garrett did not at any time have on file any assumed name certificate which showed him doing business under the assumed name of Modern Mausoleums, Inc.”
“CONCLUSIONS OF LAW
“1. The removal of the note sued upon from the contract to which it was attached marked Exhibit ‘A’, under the undisputed facts in this case, was a material alteration by reason of which Plaintiff acquired same subject to the defenses of the makers.
“2. In addition to there having been a material alteration of the note, the endorsement was such that Plaintiff could not, as a matter of law, be a holder in due course.
“3. The conditions upon which the note sued upon was to become an effective note were never met by reason of which it never became effective as a promissory note. Alternatively, the conclusion could be that there was complete failure of consideration or want of consideration.
“4. In view of the action taken by the Court in granting Defendant’s motion for judgment non obstante veredicto, there is no necessity for passing upon the Defendant’s motion for mistrial based upon jury misconduct, though on the basis of the affidavits submitted, it appears to the Court prejudicial jury misconduct had occurred.”

Appellant urges six points of error contending in substance that the trial court erred as follows: (1) in its conclusion of law no. 1, (2) in its conclusion of law no. 2, (3) in its conclusion of law no. 3, (4) in stating in the fourth conclusion of law “that there appeared to be prejudicial jury misconduct, however, the court was not going to act on defendants’ motion for mistrial in view of the action of the court in sustaining defendants’ motion for judgment non obstante veredicto”, (5) in granting defendants’ motion for judgment non obstante veredicto, and (6) in overruling appellant’s motion for judgment in view of the jury’s answers to the charge and from overwhelming preponderance of the evidence adduced from the witness stand that appellant was a holder in due course.

We sustain appellees’ first counterpoint reading as follows:

“The trial court correctly granted appel-lees’ motion for judgment, non obstante veredicto, because as a matter of law there had been a material alteration of the promissory note, thereby affecting its negotiability and rendering it void, even in the hands of a holder in due course.”

The undisputed evidence established that appellees entered into a contract dated March 17, 1962, with Modern Mausoleums, Inc. which provided that appellees were to construct a mausoleum for Modern Mausoleums, Inc. in Brownsville, Texas, and that appellees would purchase a room in an existing mausoleum at McAllen, Texas. The promissory note sued on herein was attached to the contract as “Exhibit A” and was given in part payment for said room. Payment of said note was conditioned upon commencement of construction of the mausoleum under the terms of the contract. The contract was never performed by either party. However, Garrett without the knowledge or consent of appel-lees detached the promissory note from the contract and sold it to appellant. It was conclusively established that the note sued upon was a part of the construction contract. The contract referred to the note as “Exhibit A” and the words “Exhibit A” were typewritten across the face of the note near the top center thereof. The words “Exhibit A” on the note were partially marked out in ink but still can be read dn the exhibit offered in evidence. Two sets of handwritten initials also appeared on one side of the words “Exhibit A”.

Under these conditions the detachment of the note from the contract of which jt was a part constituted a material alteration and rendered the note non-negotiable and void even in the hands of an innocent purchaser for value. Spencer v. Tripplett, 184 S.W. 712 (Tex.Civ.App., Amarillo 1916, n. w. h.); Commercial Security Co. v. Hull, 212 S.W. 986 (Tex.Civ.App., San Antonio 1919, n. w. h.) and Citizens’ Nat. Bank v. Campbell, 6 S.W.2d 799 (Tex.Civ.App., Eastland 1928, n. w. h.). See, also, Stevens v. Wheeler, 3 S.W.2d 122 (Tex.Civ.App., Waco 1928, wr. dism.).

Eor the foregoing reasons it appears that the trial court properly rendered judgment non obstante veredicto in favor ojf appellees pursuant to their motion for such relief. Rule 301, Texas Rules of Civil Procedure. Discussion of appellant’s remaining points is deemed unnecessary.

The judgment of the trial court is affirmed.