author: DICE, Commissioner.

text:
    Robert Lonnell SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 38524.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    No attorney of record of appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is burglary of a private residence at night; the punishment, thirty years.

The staters evidence shows that Mrs. Alice Armer, who was a widow, lived in an upstairs apartment of a private residence at 5327 Byers in the city of Fort Worth. On the night of January 18, 1964, Mrs. Ar-mer left the apartment around 7 o’clock, p. m., in company with a male escort and a couple from Houston who were visiting her. After having dinner and attending the Jewel Ball, the four returned to the apartment about 3 o’clock, a. m. When they reached the head of the stairs, Mrs. Armer observed that the door of the apartment was open and a window by the door was broken. After going inside it was discovered that a safe, which contained approximately $50,-000 worth of jewelry and some money, was gone from a closet. Other articles, including a shotgun and a pistol, were also missing from the apartment. Three weeks later, some $45,000 worth of the jewelry and the pistol taken in the burglary were returned to Mrs. Armer by the police. The safe taken in the burglary was found in Lake Arlington.

It was shown by Mrs. Armer’s testimony that she did not give anyone permission to break into her apartment and steal the property.

The testimony shows that on the morning after the burglary, detective Max Victor went to the home of Lizzie Stokes, a former maid in the Armer apartment, for the purpose of talking to her. Appellant and Stanley Smith were present and the detective talked to them but did not arrest the appellant at that time.

Later, on February 12, detectives Victor and Middleton went to appellant’s home and talked to him about the burglary. At such time, appellant delivered to the officers the pistol taken in the burglary. He was then placed under arrest and taken to jail.

Three hours later, appellant, after having been duly warned by detective Victor, made and signed a written confession in which he admitted having gone to Mrs. Armer’s apartment on the night in question, with Lizzie Stokes and Stanley Smith, and burglarizing the place.

In his confession, appellant related that on the night of the burglary Lizzie Stokes came to his house and that Stanley Smith was already there. After they had talked about committing a burglary, Lizzie and Stanley left to go to Mrs. Armer’s residence. In about forty-five minutes they returned and then all three got in Stanley’s car and went to Mrs. Armer’s apartment. Appellant stated that they all entered the apartment after Lizzie reached inside a broken panel and opened the door. When they entered, Lizzie began gathering various articles, including jewelry and the pistol, and stuffing them in a pillow case. Lizzie opened the closet door in the bedroom and either he or Stanley pried a strong box— which Mrs. Armer described as a safe— off the shelf. After the box and other articles had been taken to the car, the three drove to a motel, where the box, filled with jewelry, was opened. The jewelry was then placed in the pillow case and taken to and left at appellant’s house. Appellant and Stanley then drove to Lake Arlington and threw the box in the lake. Appellant related that he carried the jewelry to Dallas and left it with George Marshall. He further related that he pawned the pistol taken in the burglary to Therman Harris but that he had recovered it from him before it was recovered by detectives Victor and Middleton at his home.

Testifying as a witness in his own behalf, appellant denied having committed the burglary. He also repudiated his written confession and swore that he did not voluntarily make the same.

When the confession was first offered by the state, the jury was retired and testimony was presented to the court on the question of its admissibility.

In the jury’s absence, detective Victor testified that after he gave appellant the statutory warning, appellant proceeded to make the statement, which was typed by a secretary and signed by him. The officer swore that appellant gave the statement voluntarily.

Appellant testified that he did not give the statement voluntarily and swore that the reason he gave it was because he was told that if he did not do so a narcotic charge would be filed against him. He also stated that officers Middleton and Victor threatened to whip him if he did not give the statement and that they refused to let him call a lawyer.

Both officers Victor and Middleton denied having threatened appellant with a narcotic prosecution, or having in any way threatened him with physical violence. Detective Victor denied that appellant made any request for an attorney and stated that an attorney was not mentioned.

In the jury’s absence, the court overruled appellant’s objection to the confession and found it to have been given voluntarily and that appellant “was not denied any of his constitutional rights or due process.”

After overruling appellant’s objection to the confession, the jury was returned to the jury box and similar testimony was submitted on the question of the voluntary nature of the confession.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals. The issue as to the voluntary nature of the confession was also submitted by the court under appropriate instructions.

We perceive no error in the court’s action in admitting the confession in evidence and in submitting to the jury the issue as to its voluntary nature.

The evidence is sufficient to sustain the judgment of conviction.

The record reflects that a motion for severance was filed by appellant, which the court overruled. In the motion, appellant alleged that certain cases were pending on the court’s docket in which the defendants William J. Burns, Leroy Fields, Charles Douglas Price, and Lizzie Mae Stokes were separately indicted for an offense or offenses growing out of the same transaction for which appellant was indicted, and that their testimony was material for his defense. Appellant further alleged that there was not sufficient evidence against the defendants to secure their convictions and prayed that they be first tried in order that he might have the benefit of their testimony.

It was shown upon the hearing of the motion that the indictment against the defendant Lizzie Mae Stokes had been dismissed.

In view of such dismissal, the court did not err in refusing a severance as to her. Art. 653, Vernon’s Ann.C.C.P.

It was further shown that the indictments pending against the defendants Burns, Fields, and Price charged the offense of receiving and concealing stolen property. These defendants being charged with a different offense from that charged against appellant, the court did not err in refusing appellant’s request to sever as to them. 56 Tex.Jur.2d 355, Sec. 28; Watson v. State, 113 Tex.Cr.R. 210, 18 S.W.2d 648.

No error is perceived in the court’s refusal to permit appellant to offer proof upon the main trial that the indictment against Lizzie Stokes had been dismissed. She did not testify as a witness in the case and the dismissal of the indictment against her for burglary could have no bearing upon any issue in the case.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Larry Lee JEFFERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38552.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Cattanach, Capps, Turner, Coe, Rear-don, Chaney & Thorne, by Joe E. Turner, Houston (on appeal only by Court appointment), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Carol Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, ninety-nine years.

The original motion for new trial was overruled, and notice of appeal was given on April 3, 1964. Within the ninety days allowed by statute for filing the statement of facts, the judge trying the cause, on May 29, 1964, granted an extension of “sixty days from this day” in which to file a statement of facts. This sixty day extension of time included July 28, 1964. Twenty-nine days after the expiration of the sixty day extension, an order was entered on August 26, 1964, extending the time ninety days from that date which would move the filing date forward until November 24. Subsequent extensions were granted, and if the extension of August 26, 1964, was effective, the additional extension orders of the time for filing the statement of facts would have been extended to July 9, 1965. The statement of facts was filed with the clerk of the trial court on June 18, 1965. The statement of facts is signed by both the attorney for the appellant and for the state but it is not signed by the trial judge.

The extension order of August 26, 1964, after the expiration of the time granted in the previous extension order dated May 29, 1964, was ineffective to further extend the time for filing.

The statement of facts is not properly before this court, and cannot be considered. There are no formal bills of exception.

Nothing being presented for review, the judgment of the trial court is affirmed.

Opinion approved by the Court.


author: McDONALD, Presiding Judge. WOODLEY, Judge

text:
    STATE of Texas ex rel. Robert A. MILES et al. v. Herman JONES et al.
    No. 39083.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Doren R. Eskew, Don R. Butler, John C. Smith, Austin, for relators.
    George Schatzki and Sam Houston, Clinton, Austin, for respondents.
   McDONALD, Presiding Judge.

On the 16th day of October, 1965, this Court granted a temporary writ of prohibition, upon the verified application of Robert A. Miles, et al., that a temporary restraining order had been issued in Cause No. 146,880, pending in the 53rd District Court of Travis County, Texas, restraining the City of Austin and its Chief of Police, Robert A. Miles, their officers, agents, employees, servants and attorneys from interfering with plaintiffs in said cause from engaging in and conducting a certain parade described in plaintiffs’ original petition and relators’ petition for writ of prohibition, on Saturday, October 16, 1965, beginning at about 11:00 a. m., which order in effect attempts to restrain the enforcement of certain penal ordinances and laws, and thereby exceeds the jurisdiction of such Court.

This Court further ordered and commanded the said 53rd District Court of Travis County, Texas, the Honorable Herman Jones, Judge of said Court, Scott Pittman, Rick Rubottom and Students for a Democratic Society to desist and refrain from any further proceedings in said action specified in Relators’ Application and all orders heretofore entered in said action were suspended and held for naught until a final hearing could be had before this Court. Each of the respective parties was ordered to appear before this Court at 9:30 a. m. on October 27, 1965, to show cause why this order should not be made final. Each party to said order was bound by the contents of the order and all provisions contained from the time of actual notice thereof.

In compliance with said order all parties appeared before this Court on the 27th day of October, 1965, at which time oral arguments were made on behalf of relators and respondents.

Although this Court had authority to issue the temporary writ of prohibition, State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178, such a writ will never be made permanent where the question involved becomes moot before a hearing is held. State ex rel. Nicholson v. Humphries, 81 Tex.Cr.R. 322, 195 S.W. 194. Judge Jones’ restraining order was directed to an act or event held, or to have been held, on October 16, 1965. It is apparent from the record that the question has become moot, making it unnecessary to give further consideration to the application for a permanent writ of prohibition.

There being no other relief sought by either respondents or relators over which this Court has jurisdiction, the petition seeking to make the temporary writ of prohibition final is dismissed.

WOODLEY, Judge

(concurring).

The effect of the majority opinion is to sustain the challenge of the respondents, plaintiffs in the suit pending in the district court, to the jurisdiction of this court to make its Temporary Writ of Prohibition final. One of the reasons assigned by these respondents in their response filed in this court is that the demonstration that was the subject matter of the Temporary Restraining Order issued by Judge Jones, and of their application for temporary injunction, was carried out peacefully and in accordance with orders and instructions of Chief of Police Robert A. Miles on Saturday, October 16, 1965, and the only relief remaining which is prayed for in their original petition in the district court is that upon trial they have judgment “restraining and enjoining Defendants from wrongfully refusing to grant and issue such permits to Plaintiffs as may be applied for for such other and further demonstrations, and for such other and further relief to which they may show themselves entitled, including their costs.”

These they correctly contend are civil matters (not criminal) over which this court lacks actual or potential jurisdiction within the meaning of Art. V, Section 5, of the Constitution of Texas, Vernon’s Ann.St.

I concur in the sustaining of the plea of these respondents to the jurisdiction of this court to make its Temporary Writ of Prohibition final.


author: MORRISON, Judge.

text:
    Charnell HUNTER, Appellant, v. The STATE of Texas, Appellee.
    No. 38051.
    Court of Criminal Appeals of Texas.
    June 26, 1965.
    Rehearing Denied Dec. 1, 1965.
    Percy Foreman (on appeal only), Houston, King C. Haynie (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Joe Maida, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder; the punishment, five years.

This case is identical in all respects to the relatively recent case of Malek v. State, 385 S.W.2d 389.

Notice of appeal was given on November 12, 1964. On March 23, 1965, after the expiration of the 90 day period provided by Section 4 of Article 759a Vernon’s Ann. C.C.P., the trial court entered an order extending the time for filing the statement of facts until April 23. On April 22, a further extension of time was granted until May 22. Neither of the orders was nunc pro tunc action. The statement of facts was filed in the trial court, but bears only the approval of the attorneys and not the court.

Our holding in Malek, supra, is controlling and the statement of facts cannot be considered.

No formal bills of exception appear in the record.

Nothing being presented for review, the judgment of the trial court is affirmed.


author: WOODLEY, Judge.

text:
    Freddie Ray SHEWMAKE, Appellant, v. The STATE of Texas, Appellee.
    No. 38314.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 24, 1965.
    James A. Moore, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Appellant was charged with the offense of robbery by firearms, the indictment alleging that the assault was committed upon Robert Lee Tucker and that Ten Thousand Dollars in money was taken.

Following the selection of the jury, the state’s motion to strike the portion of the indictment alleging the use of firearms was granted.

Trial before the jury on the charge of robbery by assault on a plea of not guilty resulted in a verdict finding appellant guilty and assessing his punishment at 18 years in the penitentiary.

The sufficiency of the evidence to sustain the jury’s verdict is not challenged.

Robert Lee Tucker, a 71 year old service station attendant who was drawing a pension and social security benefits, testified that appellant came to his room on several occasions following their first meeting at a beer tavern late in 1963.

On March 6, 1964 appellant was accompanied by John Ira McClain, an ex-convict and narcotics addict, and Bob “Pop” Cox.

McClain, who appellant said was the boss, expressed an interest in purchasing Tucker’s station wagon.

On the following day the three men returned to the rooming house where Tucker lived and McClain said he wanted to try out the station wagon.

Cox parked appellant’s car across the street. Tucker backed the station wagon out and McClain got in beside him and directed him which way to go. Appellant got in the back seat. He told Tucker that Cox was going to stay in front of his house until they got back.

After Tucker drove for a way, McClain said he wanted to drive to see how the station wagon handled. After driving for several miles, McClain said “I’ve got to find a rest room here pretty quick” and turned across a cattle guard and stopped behind a mott of timber some 150 or 200 yards from the highway.

As they got out Cox drove across the cattle guard into the ranch in appellant’s car.

McClain came back out of the bushes, put his hand on Tucker’s hip pocket and said “They tell me that you carry a right smart of change.”

At this time the three men closed in on Tucker and one of them (Cox or appellant) struck him across the side of the head, knocked him down and broke his glasses. McClain got down and tried to take Tucker’s money out of his pocket but Tucker crawled under the station wagon to get away.

McClain and appellant pulled him out and appellant kicked him.

Cox stood on his legs, stomped him. He then produced a pistol and “stuck it right down to my nose and he said ‘You just open your mouth and I’ll blow your damn head off.’ ”

McClain then took from Tucker’s pocket $8,000 in $100 bills and $2,000 in $20 bills, which Tucker testified represented his savings over a long period of years.

After taping Tucker’s hands behind him and taking him out in the bushes, Tucker was forced to lie down and was kicked in the side by appellant and Cox. His legs were taped together and to his hands, and his mouth was taped.

The three men then left with Tucker’s roll of bills.

McClain testified as an accomplice witness for the state. According to his testimony the robbery was planned by the three, and was executed as planned, and the $10,000 was divided, appellant taking a larger share to cover his expenses.

Testifying in his own behalf, appellant admitted being present with McClain, Cox and Tucker when Tucker was assaulted and robbed, but denied that he participated in any way. His version was that he believed that McClain wanted to buy the station wagon; that he attempted to prevent McClain and Cox from robbing the old man but was unable to do so, and that he refused to accept or to even look at the money that was taken in the robbery.

The jury rejected appellant’s defense and resolved the issues against him. We find the evidence sufficient to sustain the verdict.

More than 225 pages of the statement of facts are devoted to the voir dire examination of prospective jurors and objections and rulings during the selection of the jury.

Eight formal bills of exception consisting of portions of the statement of facts, objections and rulings were filed, some of which were qualified.

The record reflects that after several jurors had been selected from the venire list and after what the trial court considered to be unreasonable delay, the veniremen were brought into court in groups of 12 and after being instructed and interrogated by the court, and where desired by counsel for the state and for the defense, were excused from the courtroom and returned individually for examination and for the exercise of challenges.

We find no abuse of discretion on the part of the trial judge in examining and instructing the veniremen in groups of 12 prior to their separate individual examination. No injury is shown. Art. 620, C.C.P.; Norman v. State, 121 Tex.Cr.R. 433, 52 S.W.2d 1051; Barefield v. State, 169 Tex.Cr.R. 76, 331 S.W.2d 754.

Appellant contends that the court erred in refusing to issue attachment for all of the veniremen who had been summoned but failed to appear.

The record reveals that, though no request was made at that time for any juror to be attached, the court on Tuesday morning ordered the sheriff to pick up every venireman who could be found anywhere and that the sheriff made a diligent effort to do so.

After 11 jurors had been selected from the venire and talesmen had been ordered and had appeared and been sworn, appellant requested that the veniremen who had not been examined or excused by the defendant be attached.

The trial judge promptly granted the request, excused the prospective jurors for an hour and directed: “Issue attachments and bring them all in if you have to bring them in under arrest.”

All but three of the veniremen that could be found were brought in. The three who were not were Bonnie Simms, Mrs. Ben Curd and Mrs. Mary Conklin.

Venireman Bonnie Simes (or Simms) wrote a letter and called the District Clerk advising that due to the illness of her 80 year old father, whose care was solely on her hands, it was impossible for her to leave him to serve on the jury.

Mrs. Ben Curd, Jr., furnished a certificate of Dr. E. T. Ketchum, M.D., that she had a bladder condition which made it difficult for her to sit for an extended period of time.

The third venireman, Mrs. Mary Conklin, furnished to the sheriff a statement signed by Doctor McNew stating that she had a severe back problem which would prevent her from sitting for extended periods of time, such as doing jury duty.

The trial judge did not abuse his discretion in refusing to further delay the selection of the jury and have these three ladies brought into court under attachment.

The facts distinguish the case before us from Roquemore v. State, 111 Tex.Cr.R. 77, 11 S.W.2d 316, cited by appellant. The veniremen above named were not available for jury service, they being in no position to serve on the jury.

Appellant’s next complaint is that the trial judge offered to allow him two challenges in addition to the 17 he had used, but withdrew such offer when appellant required that all absent veniremen be attached before the talesmen were interrogated.

We are cited to no authority and know of none which support appellant’s claim of error in this regard.

Appellant’s next claim of error relates to a question propounded to appellant on cross-examination: “Q. Mr. Shew-make, they tell me that your face turns red when you lie, is that correct?”

The court promptly sustained the objection to the question being highly prejudicial and instructed the jury: “Ladies and gentlemen of the jury, disregard for any purpose, blot it out from your mind as much as is humanly possible, the question just asked.”

In view of the evidence, we overrule the contention that the trial court erred in refusing to grant a mistrial.

The remaining bill of exception complains that the county attorney, who had not participated in the jury selection or been present throughout the trial, was allowed to make an argument to the jury.

This complaint is presented as a case of first impression. It occurs to us that it was a matter of discretion with the trial judge and no injury is shown.

The judgment is affirmed.


text:
    William Arthur WILKERSON, alias Bo Wilkerson, Appellant, v. The STATE of Texas, Appellee.
    No. 38461.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    James E. Faulkner, Coldsprings, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order revoking probation.

On April S, 1960, appellant was convicted in the 7Sth Judicial District Court of Liberty County, upon his plea of guilty and waiver of a trial by jury, of the offense of robbery by assault and his punishment was assessed at confinement in the penitentiary for a term of seven years.

Execution of sentence was suspended by the court and appellant was placed on probation upon certain terms and conditions, among them being that he commit no offense against the laws of this state or any other state or the United States.

On March 31, 1965, a petition was filed by the state to revoke the probation, which alleged that appellant had violated the terms of his probation by—among other things— twice driving a motor vehicle upon a public highway while intoxicated. For the first offense appellant had been finally convicted, and an indictment was then pending against him for the subsequent offense.

On April 30, 1965, an order was entered by the court after a hearing finding that appellant had violated the terms and conditions of probation and ordering the same revoked.

Motion for new trial was duly filed, and, upon being overruled by the trial court, appellant gave notice of appeal to this court.

The record contains no statement of facts of the evidence adduced upon the hearing to revoke probation and no request appears to have been made for the same.

In appeals of this nature, this court’s review is limited to a determination of whether the trial judge abused his discretion in revoking probation. Wicker v. State, Tex.Cr.App., 378 S.W.2d 332.

In the absence of a statement of facts of the evidence adduced upon the hearing, we are unable to determine whether the court abused his discretion. Guinn v. State, 163 Tex.Cr.R. 181, 289 S.W.2d 583.

It is insisted that certain errors were committed in the original trial and that the evidence introduced was insufficient to support the conviction.

By failing to appeal when he was placed on probation, appellant waived his right to a review of the original trial and the contentions now urged are not properly before us for review. Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59; Rash v. State, 168 Tex.Cr.R. 33, 323 S.W.2d 53; Chavez v. State, Tex.Cr.App., 375 S.W.2d 729, and cases therein cited.

For the same reason, no error may be predicated upon the court reporter’s inability to comply with appellant’s request that he be furnished a statement of facts of the evidence adduced upon the original trial.

We overrule the contention that the court committed fundamental error in ordering execution of the judgment and sentence without giving appellant credit for the five years he had served while on probation, in view of that provision of Sec. 8 of Art. 781d, Vernon’s Ann.C.C.P., which reads as follows:

“No part of the time that the defendant is on probation shall be considered as any part of the time that he shall be sentenced to serve.”

The judgment of the trial court is affirmed.

Opinion approved by the court.


author: MORRISON, Judge. WOODLEY, J., McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Ex parte Edwin Marious BERTSCH.
    No. 38092.
    Court of Criminal Appeals of Texas.
    June 16, 1965.
    Rehearing Denied Oct. 20, 1965.
    Second Motion for Rehearing Denied Dec. 1, 1965.
    Clyde W. Woody, Houston; John P. Farra, Houston, on rehearing, for relator.
    Wallace T. Barber, Dist. Atty., San Marcos, Gilbert Pena, Asst. Atty. Gen., Austin, and Leon B. Douglas, State’s Atty,, Austin, for the State.
   MORRISON, Judge.

This is a post-conviction proceeding initiated by the Honorable James Noel, Judge of the United States District Court for the Southern District of Texas by order dated February 3, 1965, Bertsch v. Beto, 242 F.Supp. 52, which was made subsequent to the affirmance of petitioner’s conviction by this Court. Bertsch v. State, Tex.Cr.App., 379 S.W.2d 657. On March 19, 1965, this Court directed the trial court to hear evidence and to certify to this Court the facts relative to the following grounds alleged by petitioner in his application before Judge Noel:

“(1) The Jackson v. Denno [378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908] proscribed submission of the question of the voluntariness of a confession to the jury determining innocence and guilt, without a prior determination of that voluntariness.
(2) The admission into evidence of petitioner’s confession which was procured without compliance with Rule 5a of the Federal Rules of Criminal Procedure, alleged to be applicable to the State of Texas.
(3) The failure of the State to afford the petitioner effective assistance of counsel at all stages of the prosecution, particularly at the stage when the confession was obtained from him.”

This Court also required the trial court to hear evidence as to whether or not petitioner had been deprived of due process in his trial because of the association of the Sheriff with the jury under the rule announced in Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. This question will be discussed under our paragraph no. (4)later in this opinion.

A hearing was had and petitioner was present and was represented by counsel of his own choosing.

We shall discuss the record before us in the light of the above four questions.

(I) Judge Dittert stated at a hearing in answer to petitioner’s attorney’s question as follows: “This Court always makes an initial determination of the voluntariness of the confession before it is admitted into evidence, and that was done in this case.” This is almost the exact language commended by Judge Noel in Smith v. State of Texas, D.C., 236 F.Supp. 857. In addition, Judge Dittert has sent to this Court a certification of the voluntariness of this confession in which he certified that he found initially as a matter of law that the confession was voluntarily made and that he further resolved, determined and decided conflicting and disputed issues of fact, and found beyond a reasonable doubt, without regard to the truth or falsity of the confession, that the confession was freely and voluntarily made.

(2) He further found and the record of the hearing discloses that petitioner was arrested between 5:30 and 6:30 p. m. on Sunday night and placed in jail, that he was interrogated by no one until the following morning and that the local Justice of the Peace being sick or deceased, no magistrate was available until later that day subsequent to the making of the confession, when a Justice of the Peace from an adjoining precinct came to the courthouse and petitioner was carried before him.

This Court is not inclined to accept as binding upon us the five minute rule announced in Alston v. United States, D.C. Cir., 348 F.2d 72. We know of no case in which a state court case has been decided under the Alston rule.

(3) Judge Dittert certified and the record supports the fact that appellant made no request to see an attorney or have one appointed for him prior to the making of the confession. This Court has recently held in Marion v. State, Tex.Cr.App., 387 S.W.2d 56, that where a telephone was nearby and the accused was told that he might use it to call a lawyer that the confession thereafter made was admissible under the rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Recently, in Corry v. State, Tex.Cr.App., 390 S.W.2d 763 (May 26, 1965) we held that where the accused testified on the trial, as did petitioner in his case, and failed to mention the fact that he had requested an attorney prior to making the confession, the Escobedo rule had no application. We adhere to our prior holding. We do not view the action of the Supreme Court of the United States (June 1, 1965) 85 S.Ct. 1765, in denying review without written opinion to the ruling of the Supreme Court of California in People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952, as requiring that in all state court cases an attorney must be made available to an accused whether he asks for one or not.

(4) We have examined the record made in Judge Dittert’s Court with care and have concluded that a serious question would be presented were Turner v. State of Louisiana, supra, held to operate retroactively. It must be remembered that the matter before us here is not an appeal, but a collateral attack. As we view the recent opinions of the Supreme Court of the United States in Linkletter v. Walker, 85 S.Ct. 1731 (June 7, 1965) and Angelet v. Fay, 85 S.Ct. 1750 (June 7, 1965), it is the view of the Supreme Court that only those cases of the type set forth therein have been held to have retroactive application. We adopt the following phraseology from Linkletter: “The past cannot always be erased by a new judicial declaration.” If this be a correct interpretation, then Turner v. State of Louisiana, supra, is not to be given retroactive application and cannot be the basis for the granting of the writ in the case at bar.

The writ of habeas corpus is denied.

WOODLEY, J.,

concurs in the denial of the petition to this Court for writ of habeas corpus.

ON PETITIONER’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Petitioner’s able counsel has filed an exhaustive brief in support of his motion for rehearing herein. He again complains of the trial judge’s determination and certification that he found initially as a matter of law that the confession was voluntarily made. We have with great care reviewed the entire record in the trial of this cause which was before us in Bertsch v. State, Tex.Cr.App., 379 S.W.2d 657, as well as the record on this habeas corpus proceeding. We reiterate, as stated in our original opinion, that no objection was taken to the confession at the time it was admitted in evidence at the trial of this cause. No proof was adduced as to any coercion, no issue was raised or created as to the voluntary nature of the confession. While learned counsel insists that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, required an instruction from the Court to the jury on the voluntariness of the confession, we disagree. Such an instruction, in the state of the record before us, would have had the effect of submitting to the jury for their determination the exact question condemned by the U. S. Supreme Court in the Jackson v. Denno case. There was no factual basis, no issue, in the evidence that even remotely required the submission of such an issue to the jury. Additionally, Judge Dittert, the trial judge, made an independent determination and finding, as shown by the record, that the confession was voluntarily made, and he so held that it was voluntary as a matter of law. We overrule petitioner’s contention once more.

Petitioner relies heavily upon the opinion of the 5th Circuit Court of Appeals in the case of Collins v. Beto, 348 F.2d 823, and correctly states that the 5th Circuit adopted the rule announced by the California Supreme Court in People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952, which two cases hold that a request for counsel is immaterial. However, we observe that in both of these cases neither petitioner nor defendant was apprised of his right to counsel. In the case at bar, petitioner was told of this right by Deputy Sheriff Adamcik, a witness for the defense, as shown from the testimony on the voluntary nature of the confession:

Q: “But you did let him know that if he wanted to get an attorney, not talking about the Court appointing him an attorney, but if he wanted to get an attorney at that time he could ?”
A: “Yes, sir, that was the first question I asked him, if he has got an attorney.”

Later on in his testimony Deputy Adamcik testified, “He understood that when I first asked him the question about if he has got an attorney. We went through that.” The record reflects that appellant made no type of request whatever for an attorney, either to be employed by him, or appointed for him by the Court. It is significant to observe that upon his trial petitioner was represented by two attorneys of his own choosing, employed by him. Petitioner here is not in the category of Collins. In that case Judge Tuttle said, “Petitioner was not advised of his right to consult a lawyer.” Here, petitioner was advised by Adamcik of his right to be represented by an attorney. Adamcik, the record shows, was his friend of a lifetime, and he talked with petitioner in both the English and Czech language so that petitioner would fully understand all that Adamcik told him. We find no basis to apply the two foregoing holdings to the facts in this case. This contention is again respectfully denied.

Lastly, petitioner urges that our holding on original submission of this cause was in error wherein we gave application to the rule retrospectively announced in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, to Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed. 2d 424. While this writer is inclined to the view that petitioner is correct in his contention that Linkletter does not preclude the giving of a retroactive interpretation to Turner, supra, we feel that the facts in Turner’s case are radically different and a great deal more far-reaching than the facts in the case at bar. The two deputy sheriffs in Turner’s case were the principal prosecuting witnesses. They were in continuous and intimate association with the jurors, eating and conversing with them and doing errands for them. Turner’s counsel not only objected to the testimony of these two deputies when they took the stand, but he moved for a mistrial, and he later urged this same contention when he made a motion for a new trial after the verdict of death. The testimony of these two deputies was not confined to some un-controverted or merely formal aspect of the case for the prosecution. These deputies made an investigation at the murder scene, took Turner into custody, and Turner led them to a place in the woods where the cartridge clip from the murder weapon was recovered. Deputy Simmons corroborated Rispone, the other deputy, and told of certain damaging admissions which he said had been made by Turner at the time of his apprehension. Simmons also testified about prevailing upon Turner to make a written confession, introduced in evidence.

The record in this case discloses that Sheriff Flournoy took the jury to one meal and transported part of them in his car to a nearby motel.

Deputy Prilop took the jury to two meals. It was Deputy Adamcik who spend the night with them, but he did not testify in the trial of this case on its merits, but only upon the post-conviction habeas corpus hearing.

Deputy Prilop’s testimony, consisting of only seven pages in the statement of facts, reflects that he received a call to go to the home of Edwin Bertsch on the evening in question. When he arrived Bertsch was sitting on the front porch of his home and Mrs. Bertsch and the 6 year old daughter of the couple were in the front yard screaming and crying. He saw a 12 gauge shotgun near the petitioner. The gun was of the pump type, later offered in evidence. He examined the gun and one empty shell was jammed in the gun and there were two shells in the magazine. He arrested the petitioner and took him to jail.

Dr. David Wade testified that he was an Austin psychiatrist; that Sheriff Flour-noy brought petitioner to him on October 9, 1962, and he examined him. “He was of sound mind at the time of the examination, and he was of sound mind two days before that.” The doctor testified that the examination took a little bit longer than an hour.

Sheriff Flournoy testified and identified the 3 shotgun shells turned over to him. He went to the Bertsch home in response to a radio message. Mrs. Bertsch was on the porch, and he went in the house and saw the body of the dead girl. He then called a photographer to come out to the Bertsch home and make some pictures. He testified that the pictures truly represented that which they purported to show. They were admitted into evidence. The only objection taken to their introduction was, “The man who took the picture is not here.” The sheriff then described the wounds that he found on the body. He saw the petitioner possibly an hour later at the jail, but he did not talk with him until the next morning, at which time petitioner made a statement, later admitted into evidence without objection. The entire testimony of Sheriff Flournoy is 17 pages.

The state previously adduced testimony from the undertaker, Ernest Seidel, and from an embalmer, Clyde Owens. They told of picking up the body and described the wounds on the body.

The state rested its case after Sheriff Flournoy’s testimony.

Petitioner’s wife, Mrs. Lillian Bertsch, was the first defense witness. She testified that she “heard a big bang and seen her just falling down.” “I laid her down * * and I walked right in, and I met Edwin, and he had been standing with the gun in his hands, and I spoke to him * * * I said, ‘Did you do this ?’ because he had the gun in his hand, and I realized that he must have. He didn’t answer me, and I said, ‘Why did you do it?’, and he didn’t answer me, and he was just standing there dumbfounded, wouldn’t answer anything, and standing there and holding that gun like he was holding it, and trying to work it or something.” Mrs. Bertsch’s testimony encompassed 20 pages in the statement of facts.

Edwin Marious Bertsch, the petitioner, testified as to his background as a grocer and carpenter. He identified the gun in the evidence as his own. He related that he had gone to two beer joints to try and locate Vernon Schoppa. He drank some beer, did not find Schoppa, went home and tried to take a nap. He couldn’t sleep so he got up. “I decided I was going to get up and clean the old gun”. He related that when he started through the door to get a can of oil out of his car, “That was when the gun went off, and I don’t know what happened after that, and I walked out through that door.” “I don’t know what happened. The shot went off, and when somebody hollered, when they hollered I was off. I didn’t know nothing. I fell, and I don’t remember nothing since.” He testified that the next thing he remembered was Mr. Prilop shaking him. His testimony was 23 pages in length.

Vernon Schoppa was a defense witness, but he adduced no significant testimony. He just related working with petitioner.

Freddy Bertsch, petitioner’s IS year old son, testified to finding an oil can in his father’s car. His testimony on cross-examination refutes his father’s (petitioner) testimony in that Mr. Bertsch had denied that his son had started working so young at a beer joint. The witness related that he went to work at a Mexican beer joint when he was 13i/£ years of age, slept and ate there and that his father either would not help or could not help Rose Marie finish high school, and she went to Houston to finish.

Edwin H. Bertsch, Jr., told of hunting frequently with the shotgun (the death weapon), and the gun had gone off on him and his brother. He did not remember telling his father about this defect. He further testified that his father “always cautioned us about guns, he taught us gun safety.” He also related that his father “Never went hunting. He never used the shotgun.” This witness testified at length as to his examination of the room where his dead sister was shot and of finding shotgun pellets in the wall. He told of their location and the physical facts about the room, the way the door to his father’s room opened and the location of the furniture.

Dr. L. D. Boelsche, an M.D. in general practice for 30 years, who practiced in LaGrange, testified that he went to see the petitioner in j ail on Monday, October 8, 1962. “I just went down there to talk to him at the request of his sister, and he was extremely nervous physically. I talked to him a little bit and left. He had some pain in his side, and agitated mentally, so I prescribed a tranquilizer for him. He was upset, nervous. I only saw him about 5 minutes.”

The defense then rested its case.

Sheriff Flournoy took the stand in rebuttal and identified a jacket which had been laundered. The funeral home turned it over to him. He told of the holes in it and stated that it was in the same condition as it was when he first saw it on decedent’s body. The sheriff testified that a picture taken by a defense witness and introduced in evidence by petitioner did not show a money bank and a picture of Rose Marie. The two items were on a table in the room where the girl was killed, and the money bank and picture were both shattered by the shot.

We have carefully re-stated the entire testimony in order to point out that the presence of these two state’s witnesses, Sheriff Flournoy and Deputy Prilop, and the testimony adduced by them violated no basic guaranties of trial by jury in violation of the 14th or 6th amendments nor any trial procedure of this state. The petitioner was not deprived of any constitutional rights. We do not agree that their presence was of itself prejudicial to petitioner. Petitioner only testified to an “accident.” The jury chose not to believe his version. If he unwittingly took the stand, put his wife on as a witness, put his sons on as witnesses in his behalf, it was the trial strategy determined by him and his two employed attorneys. He had a fair trial. In the jury’s judgment he deserved the extreme penalty. We are not inclined to disturb their verdict.

Every contention raised by petitioner, both originally and in his motion for rehearing, has been examined with extreme care. We find no merit in his contention that Turner applies to his case. The two cases may easily be distinguished upon the facts.

The motion for rehearing is overruled.

WOODLEY, Judge

(concurring).

The relief sought in this original application for writ of habeas corpus was properly denied. The evidence adduced at the hearing directed by this court and the findings of the trial judge are in the record and may be made available for use in the Federal post-conviction proceeding now pending.

I would overrule the motion for rehearing without written opinion.


text:
    Robert Louis STEVENSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38572.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for felony theft; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., by reason of two prior convictions for felonies less than capital, life imprisonment.

At the trial the prosecuting witness, Robert Proctor, testified that on or about the 24th day of June, 1964, two saddles were taken from his barn without his consent. State’s exhibits # 1 and 2 were identified by the witness as the two missing saddles which he later recovered in Lawton, Oklahoma. A value in excess of $50 was placed upon each saddle by the witness.

The witness Thurman Belcher testified that on June 25, 1964, he purchased a saddle, bridle, and spurs from the appellant in Lawton, Oklahoma for $77. State’s exhibit #2 was identified by the witness as the saddle he had purchased. He further stated that at the time of the purchase, appellant was with a man identified by the name of Keer and that they had two saddles. He also testified that the saddle which he purchased and the other saddle introduced in evidence each had a market value of more that $50.

Louis Keer, an admitted accomplice to the crime, who had entered a plea of guilty and received a five-year probated sentence for the theft of two saddles, upon being called as a witness by the state, testified that on June 24, 1964, he and the appellant came to Texas from Clovis, New Mexico; that they were traveling in the witness’s 1955 black and white Oldsmobile; that they first stopped in Silverton and after leaving there the witness stopped the car near a house on the highway, between one and two o’clock, a. m.; that appellant got out and in some fifteen minutes returned with one of the stolen saddles; that appellant left the ear again and returned the second time with the other stolen saddle. The witness testified that they then drove to Lawton, Oklahoma, where, the following morning, appellant sold one of the saddles to the witness Belcher for $77.

It was further shown that appellant was arrested in Lawton on June 25, while standing at a teller’s window of a bank with a check in his hand for $77, which had been given to him by the witness Belcher. At such time, his companion, Keer, was arrested while seated in his 1955 black and white Oldsmobile parked by the side of the bank. With Keer’s consent, the car was searched by the officers and the other stolen saddle (state’s exhibit #1,) which was in open view, was recovered from the back seat.

Proof was made by the state of the two prior alleged convictions of the appellant for felonies, less than capital, by the introduction in evidence of certain authenticated copies of the records of the Colorado state penitentiary and by the comparison of fingerprints. From the records it was shown that on July 8, 1938, one Robert Stevenson was convicted in the District Court of El Paso County, Colorado, in Cause No. 9034, of the offense of burglary without force and thereafter, on the 20th day of November, 1950, one Robert Louis Stevenson was finally convicted in said court, in Cause No. 9897, of the offense of grand larceny. Certified copies of the informations and judgments in the two cases were also introduced in evidence which showed that the second conviction was for an offense committed after the first conviction had become final.

Deputy sheriff L. R. Cherryhomes, of Potter County, testifying as a fingerprint expert, stated that he had compared appellant’s known fingerprints with those in the penitentiary records introduced in evidence and that they were identical and made by the same person.

Appellant did not testify and offered no evidence other than proof that a previous indictment returned against him, charging theft of the two saddles, had been dismissed prior to return of the instant indictment upon which he was tried.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals. The jury was also charged that the state’s witness Louis Keer was an accomplice to the crime, and was fully instructed as to the evidence necessary to convict upon his testimony.

We find the evidence sufficient to sustain the judgment of conviction.

The record contains no formal bills of exception and there are no objections to the court’s charge.

Complaint was made by appellant at the trial that the witness Cherryhomes was not shown to be qualified as a fingerprint expert.

The witness testified that he was superintendent of Identification and Records of the Potter County sheriff’s department; that he had received special training in the field of fingerprint identification, including an eighteen months correspondence course with the Institute of Applied Science, in Chicago, Illinois, which he completed in seven months, and that he had also attended a number of schools on fingerprint work conducted by the F. B. I. and Department of Public Safety. The witness further testified that he had been engaged in fingerprint work since the year 1936, having been employed in the police department of the city of Amarillo for seventeen years and also in the sheriff’s department at Hereford and Amarillo.

Under his testimony, the court did not err in holding the officer qualified to testify as a fingerprint expert. Todd v. State, 170 Tex.Cr.R. 552, 342 S.W.2d 575.

The sentence imposed by the court provides that appellant be confined in the penitentiary for a term of not less than two (2) years nor more than life. The same is reformed so as to provide for no minimum punishment and to read that he be confined in the penitentiary for life. Art. 63, supra.

As reformed, the judgment is affirmed.

Opinion approved by the court.


text:
    Ignacio RAMOS, Appellant, v. The STATE of Texas, Appellee.
    No. 38533.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    J. Q. Warnick, Jr., Lubbock, (Court appointed counsel), for appellant.
    Alton R. Griffin, Dist. Atty., Teddy L. Hartley, Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is possession of heroin; the punishment, 20 years.

In view of our disposition of this case a recitation of the facts will not be deemed necessary other than the following. Diligent court appointed counsel prior to trial presented a motion in limine in which he prayed that the attorneys for the State and the witnesses be instructed not to allude to any information which they may have received from third parties with reference to the offense here on trial. Such motion was by the Court overruled. The first witness for the State was asked when he first saw appellant on the day in question and he replied, “we received information that. * * ” He was interrupted by an objection that such was hearsay. Such objection was overruled and exception noted. The witness continued, “We received information that they were shooting heroin at the service station at Broadway and Avenue A in the rest room.” Appellant again objected and such objection was overruled.

Appellant did not testify, and no contraband was shown to have been found on his person.

It has been the consistent holding of this Court that hearsay information as to probable cause authorizing an arrest is to be heard by the Court but not by the jury. Sowers v. State, 160 Tex.Cr. 456, 272 S.W.2d 119, and Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615. We are unable to distinguish the case at bar from Cabrera v. State, Tex.Cr.App., 395 S.W.2d 34 (November 3, 1965).

For the error assigned, the judgment is reversed and the cause is remanded.


author: McDONALD, Presiding Judge.

text:
    Ex parte Robert STROTHER.
    No. 38282.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    Rehearing Denied Dec. 1, 1965.
    Clyde W. Woody, John P. Farra, Houston, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is a habeas corpus proceeding filed originally in the 3rd Judicial District Court of Houston County where petitioner alleged that two convictions by which he is confined are void. Following a hearing before that court, a writ of habeas corpus was issued returnable to this court. For the purpose of further developing the facts relative to one of these convictions, the Judge of the 26th Judicial District Court of Williamson County was directed to hold a hearing.

Records of the Houston County and Williamson County proceedings are before this court, and reveal that on November 2, 1943, petitioner was convicted of assault with intent to murder and, having previously been convicted of two felonies less than capital, sentenced to life imprisonment. Less than a month later, in McLennan County petitioner was sentenced to 60 years following his conviction for robbery by assault. Both causes were tried without a jury upon a plea of guilty. We shall first consider the Williamson County conviction.

Petitioner alleges that he was not represented by counsel at the time he waived trial by jury, and that his conviction is therefore void, citing Article 10a, Vernon’s Ann. C.C.P., which provides, in part, “ * * * that before a defendant who has no attorney can agree to waive a jury, the Court must appoint an attorney to represent him.”

It is undisputed that counsel was' appointed for petitioner on November 2, 1943. To substantiate his allegation that he waived his right to a jury trial prior to that date, petitioner relies upon a document in the record entitled “Defendant’s Application for Consent of Attorney Representing State to Waive Jury Trial.” This instrument dated November 1—one day prior to the date of appointment of counsel—is signed by petitioner and states:

“It is my desire to enter a plea of guilty and waive the right of a trial by a jury in the above entitled and numbered cause. I hereby request your consent and approval in waiving the right of trial by jury.”

It is well settled that the provisions of Article 10a are mandatory, and failure of the trial court to appoint counsel for petitioner prior to accepting his waiver for trial by jury would be reversible error. Ex parte Prestridge, Tex.Cr.App., 373 S.W.2d 494; Ex parte Williams, 169 Tex.Cr.R. 565, 336 S.W.2d 429; Ex parte Washington, 168 Tex.Cr.R. 366, 328 S.W.2d 188. The document relied upon by relator, however, was not a waiver of the right to trial by jury, but rather, as its title indicates, was a request that the prosecutor give his consent to such a waiver and was notification to the court and the prosecution that it was the intention of the applicant to waive such right at -the proper time.

The judgment recites that counsel for petitioner was appointed prior to the time petitioner waived the right to trial by jury. This is corroborated -by the trial court’s docket sheet, which bears the following entry:

“11-2-43. C. O. Lansberry appointed to represent Defendant. Defendant waived jury and pled guilty before the court to the offense of Assault with Intent to Murder with Malice, and it appearing to the Court that the Defendant has previously been convicted of two felonies less than capital, his punishment is assessed at imprisonment for life in the penitentiary * *

It appears from the record that all requirements of law for the waiving of the right to trial by jury were satisfied in the trial court, and that petitioner was represented by counsel at the time he waived that right.

Notwithstanding the evidence showing appointment of counsel, petitioner contends that he was not represented by counsel during the trial, and also alleges that there was no evidence introduced at his trial to sustain his conviction. The record from the Williamson County hearing reveals that these contentions are without merit.

The conclusion that petitioner is lawfully restrained under sentence from Williamson County precludes us from considering the validity of other convictions. Ex parte Rios, Tex.Civ.App., 385 S.W.2d 677; Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753; Ex parte Herring, 156 Tex.Cr.R. 624, 245 S.W.2d 705.

This Court is not authorized to enter a declaratory judgment but only to inquire into the legality of the confinement or restraint of the prisoner. Ex parte Herring, 160 Tex.Cr.R. 357, 271 S.W.2d 657.

From the record it appears that if the attack on the validity of the McLennan County conviction was upheld, the relator would not be eligible for discharge. Ex parte Timberlake, 160 Tex.Cr.R. 127, 267 S.W.2d 408.

The application for writ of habeas corpus is denied.


author: DICE, Commissioner. MORRISON, Judge.

text:
    James Bryson MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37037.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    Rehearing Denied Feb. 17, 1965.
    Certiorari Denied Nov. 22, 1965.
    See 86 S.Ct. 307.

      Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus J. Zgourdes, Asst. Dist. Attys., Houston, David Brooks Coffer, Jr., County Atty., Bryan, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for bribery; the punishment, four years in the penitentiary and a fine of $2,500.

Appellant, James Bryson Martin, and Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren were jointly charged by indictment with the offense of bribery of one Clem McClelland, a probate judge of Harris County.

Motions for severance were filed in Criminal District Court No. 5 of Harris County, in which court the indictment was pending, by appellant and also by his four codefendants. The codefendants’ motion was by the court granted and, the defendants being unable to agree upon the order of trial, appellant was ordered to be tried first.

After granting the severance, the court on his own motion ordered venue of the cause changed to Brazos County and trial in the 85th Judicial District Court of said county. In the order changing venue, the court found that a trial alike fair and impartial to the accused and the state could not be had in Harris County because of the existence in the county of such great prejudice against appellant.

This is an appeal from appellant’s trial and conviction in Brazos County.

The indictment, omitting the formal parts, charged:

"* * * that on or about the 2nd day of December, A.D. 1960, in said County and State, Clem McClelland was then and there the Judge of the Probate Court of Harris County, Texas, a judicial officer, the said Clem McClelland having been duly elected and qualified as such officer and having entered upon the duties of said office, a part of said duties being the appointment of appraisers, administrators and guardians in matters, causes, and proceedings filed in the Probate Court; and ROSS EVAHN, DAVID HUDSON, E. R. COFFEY, R. M. DUREN, and JAMES BRYSON MARTIN did then and there unlawfully, wilfully, and corruptly bribe and offer to bribe the said Clem McClelland by giving him the sum of Twenty-Five Thousand Seven Hundred Eighty-Three Dollars and Ten Cents ($25,783.10) in money with the intent to influence the acts, decisions, judgments and recommendations of the said Clem McClelland in his judicial capacity to thereafter appoint them, the said ROSS EVAHN, DAVID HUDSON, E. R. COFFEY, R. M. DUREN, and JAMES BRY-SON MARTIN as appraisers, administrators, and guardians in matters, causes, and proceedings then pending before the said Clem McClelland in his judicial capacity, and in matters, causes, and proceedings which would thereafter be brought before and come before the said Clem McClelland in his judicial capacity in violation of his duty as said officer.”

The state’s evidence shows that on the dates in question, Clem McClelland was the duly elected and acting probate judge of Harris County.

As probate judge, it was Judge McClel-land’s duty to appoint administrators, guardians, and appraisers in cases filed in his court. During the period from January 1, 1961, through May, 1962, Judge McClel-land appointed the appellant and his code-fendants, Ross Evahn, David Hudson, E. R. Coffey, and R. M. Duren, as appraisers in estates for a total of 3511 times. In this same period he appointed 257 other persons as appraisers in estates for a total of 2225 times. It was shown that until January 1, 1962, the appraisers in each estate received a fee of $5, which was charged as court costs, but that additional appraisal fees were paid the appellant and his codefendants in certain estates. In one estate, appellant and two of his coindictees received the sum of $1,200; in another estate appellant, together with one of his coindictees and another person, received $300; and in a third estate appellant received a fee of $50.

On December 2, 1960, the appellant and two other persons obtained articles of incorporation from the secretary of state, authorizing the corporation to do business under the name of Tierra Grande, Inc. The appellant, acting as president of the corporation, on December 2, 1960, opened a bank account in the name of Tierra Grande, Inc., in the Citizens State Bank of Houston. The only two persons authorized to make withdrawals from the account were the appellant and Helen Smith, who had been Judge McClelland’s secretary for a number of years. Beginning in December, 1960, and in each succeeding month through May, 1962, the appellant and his four coindictees made numerous deposits into the Tierra Grande, Inc. account. During such period, Evahn’s deposits totaled $6,775; Hudson’s totaled $4,750; Coffey’s totaled $3,666.10; Duren’s totaled $7,975; and those of the appellant were in the total sum of $558. During this same period of time numerous checks were drawn on the Tierra Grande account which were either payable to Judge McClelland or, from the notations thereon, were shown to be for his benefit. The total amount of checks payable to Judge McClel-land or to cash and endorsed by him was in the sum of $10,550. Many other checks in various amounts were shown to have been issued for the judge’s benefit. Some of the checks drawn on the Tierra Grande, Inc. account and payable to Judge McClelland had been endorsed by him and deposited to his personal account in another bank.

Appellant did not testify or call any witnesses in his behalf.

In submitting the issue of appellant’s guilt to the jury, the court charged upon the law of principals and circumstantial evidence.

We find the evidence sufficient to support the judgment of conviction.

The record is before us without any formal bills of exception.

Complaint is made to the court’s refusal to quash the indictment. Appellant timely filed and presented to the court a motion to quash the indictment, in which he alleged numerous reasons why the indictment failed to charge an offense. In the motion, appellant further excepted to the indictment on the ground that it was returned by a grand jury which had before it evidence that had been illegally obtained in a court of inquiry held before Justice of the Peace W. C. Ragan, of Precinct No. One of Harris County, in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

The record contains the motion to quash the indictment, together with the court’s order thereon and a statement of facts of the evidence adduced in connection therewith. The court’s order does not show an exception by appellant to the court’s ruling, as required by Art. 760e, Vernon’s Ann. C.C.P., to constitute an informal bill of exception under such article. Brooks v. State, 170 Tex.Cr.R. 555, 342 S.W.2d 439.

We have, however, examined the indictment in the light of appellant’s exceptions and find that it follows the statute, and the allegations are sufficient to charge the offense of bribery, under Art. 158, Vernon’s Ann.P.C.

Appellant’s attack upon the indictment on the ground that it was returned upon evidence illegally obtained in a court of inquiry is similar to that urged and overruled in McClelland v. State, Tex.Cr.App., 373 S.W.2d 674, where it was held that such was not a ground for quashing an indictment in this state.

Complaint is made to the court’s action in denying appellant’s motion for severance and in granting his codefendants’ motion and ordering him tried first. In his motion, appellant alleged that Judge Clem McClel-land was under indictment for. an offense, growing out of the same transaction, and requested that he be tried first. Request was further made that following Judge Mc-Clelland’s trial, appellant’s coindictees, Evahn, Hudson, Coffey, and Duren, be put to trial in the order named.

We find no error in the court’s action. The record shows that the court, in fact, granted a severance on motion of appellant’s coindictees, Evahn, Hudson, Coffey, and Duren. It further appears that appellant and his four coindictees were unable to agree upon the order of trial. Upon their failure to agree, it was the duty of the court, under Art. 652, V.A.C.C.P., to direct the order of trial. In ordering appellant tried first, the court did not err. Henderson v. State, 149 Tex.Cr.App. 167, 192 S.W.2d 446.

Complaint is also made to the court’s action in ordering venue changed to Brazos County. Appellant does not present by either formal or informal bill of exception any facts which refute the court’s finding that a fair and impartial trial to both appellant and the state could not be had in Harris County. In the absence of such proof it will be presumed, on appeal, that the court had a basis for such finding, and no error is shown. Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137.

Complaint is made to the court’s action in permitting the state’s witness, Deputy County Clerk Weldon H. Kretschmar to testify from a list which had been prepared by him and others under his direction, showing all the appraisers appointed by Judge McClelland during the period from Decem-her 1, 1960, through May, 1962. Complaint is also made to the court’s action in admitting the list in evidence, as state’s exhibit #43, over appellant’s objection that it was in violation of the best-evidence rule.

The witness Kretschmar, as deputy county clerk of Harris County, was shown to be custodian of the probate records. He testified that the list was prepared from the records by him and those under his direction, and verified the accuracy of the list and stated that it was prepared from the original records, which consisted of between sixteen and seventeen thousand pages and contained between five and six thousand guardianships.

The original probate records were in court at the trial and made available to appellant for inspection. Under the record, the court did not err in admitting the list in evidence and in permitting the witness to testify from the list, which was a summation made by the witness from the original records of the appointments made by Judge McClelland during the period of time shown. New Amsterdam Casualty Company v. W. D. Felder & Co., 214 F.2d 825, 5 Cir.; Spradlin v. Rosebud Feed & Grain Co., 294 S.W.2d 301, Civ.App., writ refused.

We overrule appellant’s contention that the court erred in allowing the state to introduce evidence which was unconstitutionally obtained, in violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. An examination of the record does not reflect that any illegally obtained evidence was introduced against appellant. The evidence presented against him consisted of the testimony of witnesses and numerous exhibits of bank records which were presented in court under subpoenas issued by the district clerk of Brazos County. No evidence which appellant insists was illegally obtained in the court of inquiry was introduced upon the trial.

We also overrule appellant’s contention that the penalty provision of Art. 158, supra, is so vague and indefinite as to render the statute void.

The penalty provision of the statute provides :

“ * * * shall be confined in the penitentiary not less than two nor more than five years, or be confined in jail for not less than one month nor more than two years, or be fined not less than Five Hundred Dollars nor more than Five Thousand Dollars, or by both such fine and imprisonment.”

In Mosier v. State, 90 Tex.Cr.R. 136, 234 S.W. 225, a similar penalty provision in Art. 1150, V.A.P.C., defining the offense of failure to stop and render aid, was upheld against a contention that it was vague and indefinite.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

In a scholarly manner appellant has attacked our original opinion because we failed to discuss his contention that all evidence as to the Tierra Grande books were introduced over his obj ection that they were tainted under the “fruits of the poisonous tree” doctrine so ably announced years ago by the Supreme Court of the United States in Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. His contention is bottomed upon the assertion that the subpoena duces tecum issued by the Court of Inquiry which made it possible for the prosecution to secure possession of copies of such records was an illegal process because the Court of Inquiry itself was conducted in an unconstitutional manner.

The answer to this contention seems to be that both our Civil Courts and this Court have had this question before them and have failed to agree with him.

While it is true that this writer on Motion for Rehearing in McClelland v. State, Tex.Cr.App., 373 S.W.2d 674, expressed his trepidation over the propriety of the manner in which the Court of Inquiry was conducted, and Chief Justice Bell and Justice Coleman expressed their concern over the same matter in McClelland v. Briscoe, Tex.Civ.App., 359 S.W.2d 635, no court has held that such- procedure reaches constitutional dimensions.

Silverthorne, supra, was a case of search without a warrant and by virtue of an invalid subpoena. Here we have a subpoena duces tecum (itself a process authorized by statute) issued by the Justice of the Peace who was acting pursuant to his authority after having convened the Court of Inquiry which was authorized by Article 886, Vernon’s Ann.C.C.P., a statute of this State which was first enacted by the Legislature in 1876.

It is not within the province of an appellate court to declare unconstitutional all that appears to them to be unfair and not wise exercise of the powers of government. In the case of Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167, the Supreme Court of the United States said:

When the subject lies within the police power of the state, debatable questions as to the reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment, and its action within its range of discretion cannot be set aside because compliance is burdensome.”

The writer has perused with care the record made before the Honorable Sam Davis on Appellant’s motion to quash the indictment, made a part of the record in this case, and is of the same opinion as he expressed in McClelland v. State, supra, and here now expresses the thought that the Legislature should provide needed relief by either eliminating the statute which authorizes the Court of Inquiry or providing some procedural safeguards for the conduct of proceedings before the same. But we have not been able to bring ourselves to hold that the conduct before us here is comparable with that denounced in Silverthorne, supra.

Appellant’s contention as to the failure of the court to place McClelland on trial first is without merit because the court was without the power to direct the order of trial in McClelland’s case, as he had already transferred the case against Mc-Clelland to another county and could not prevent a continuance in appellant’s case by then ordering McClelland’s case first. Henderson v. State, 104 Tex.Cr.R. 495, 283 S.W. 497.

The appellant’s motion for rehearing is overruled.


text:
    Clifton Vernon DRENNON, Appellant, v. The STATE of Texas, Appellee.
    No. 38705.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Vernon McDaniel, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Thomas F. Keever, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is assault with intent to murder; the punishment, 10 years.

Bartlett, appellant’s son-in-law, had arrived in Wichita Falls on the night in question with his wife and three children. Following a disagreement with his wife as to where they were to spend the night, his wife drove off and left Bartlett on foot. According to his testimony he entered his father-in-law’s house in order to call a friend to come pick him up and went to the kitchen where he was in the process of using the telephone when appellant entered the kitchen armed with a pistol and hotly remonstrated him about breaking into his house. Bartlett stated that without further ado appellant shot at him four times, two of which took effect and that he then overpowered appellant, took the pistol and went to a nearby house where the ambulance and the police arrived.

Police officers corroborated Bartlett as to the slugs taken from the wall.

Appellant, testifying in his own behalf, denied that he was intoxicated on the night in question, stated that Bartlett, who had resided in his home immediately following his marriage and against whom he bore no ill will, entered his home unannounced on the night in question, turned on the kitchen light and remained silent when appellant demanded that he “get out of there * * * and come back to the door and knock like a man should.” Appellant further admitted that he fired three rapid shots at Bartlett who was unarmed and had made no gestures toward him prior to the shooting. He did not testify that he thought that Bartlett intended to steal anything from him, but did state that Bartlett was under probation for theft.

Out of an abundance of caution, the trial court instructed the jury to acquit if it reasonably appeared to appellant that Bartlett was in the act of burglarizing or stealing from appellant and further charged the jury on the defense of his house and his right to eject an intruder therefrom.

The jury resolved such conflict as there was in the evidence against appellant, and we find the evidence sufficient to sustain the conviction.

Appellant’s counsel on appeal sought to raise in his brief the question of the competency of appellant’s trial counsel. We have, as we did in Williams v. State, 169 Tex.Cr.R. 496, 335 S.W.2d 224, examined the statement of facts in the light of such contention and concluded that appellant’s rights were fully protected.

Though not raised by brief, we do observe that appellant’s trial counsel objected to Bartlett’s testimony that immediately prior to the shooting appellant told him “I have shot a man before”. While testifying in his own behalf, appellant admitted that he had shot another man prior to shooting the injured party in this case. Be this as it may, under the holding of this Court in Carrier v. State, 159 Tex.Cr.R. 421, 264 S.W.2d 728, such a statement would be admissible.

Finding no reversible error appearing, the judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Gerald PROCELLA, Appellant, v. The STATE of Texas, Appellee.
    No. 38372.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 20, 1965.
    Second Motion for Rehearing Denied Dec. 1, 1965.

      John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, W. Louis White and Gus J. Zgouri-des, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder with malice; the punishment, life.

This is a companion case to that of Graves v. State, Tex.Cr.App., 382 S.W.2d 486 (cert. denied).

Appellant orally confessed that he was the' driver of the automobile at the time of the robbery; that they only planned to rob the man and not to kill him; that they heard on the radio that Mr. Phillips, the deceased, was dead and they knew they had to get rid of the pistol and that he threw it into the bayou. A pistol was subsequently found by a diver at the place that had been pointed out by appellant. Also, a fingerprint on a paper bag left in the motel by Graves was identified as the right little finger print of the appellant.

The only allegation of the motion for new trial relating to misconduct in the jury room upon which a reversal could be predicated relates to a statement alleged to have been made by the Juror Gay to the other jurors to the effect that the defendant would definitely get out of the penitentiary sooner on a life sentence than he would on a twenty-five year sentence. '

The motion for new trial alleged that the facts set out as jury misconduct and the receipt of evidence while deliberating were completely supported by the affidavit of his counsel “and will be further supported by the sworn testimony of Juror C. V. Gay, if and when he should be called upon to verify and substantiate the truth of the above, stated facts.,”

On the day set for hearing on the motion for new trial the Juror Gay made affidavit:

“At no time during our deliberation was there any consideration given by any of the jurors, to my knowledge, to the length of time this defendant would have to serve in the penitentiary because of the life sentence. We did not discuss nor consider the fact of parole or the possibilities of serving a shorter or longer period of time than the punishment assessed.”

It has been the rule since Vyvial v. State, 111 Tex.Cr.R. 111, 10 S.W.2d 83, that a motion alleging that something improper transpired in the jury room, in order to be sufficient as a pleading, must be supported by the affidavit of a juror or some other person who was in a position to know the facts. See Brown v. State, 160 Tex.Cr.R. 150, 267 S.W.2d 819, 822 and cases cited.

Where the motion before the court was insufficient as a pleading in that it was not supported by the requisite affidavit of a member of the jury, the court’s action in overruling such motion for new trial at any stage of the proceeding could not be assigned as error. Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214.

By the affidavit on information and belief of appellant’s counsel he sought to invoke the exception to the above rule so as to permit him to call the juror, the source of his information and belief, to verify and substantiate the truth of his allegations, he having declined to make affidavit.

Juror Gay, the source of the “information and belief” of counsel for appellant, not only failed to verify and substantiate the truth of the allegations as to misconduct in the jury room but swore that no such misconduct or receipt of new evidence occurred.

When the affidavit of Juror Gay was brought to the attention of the court he found no necessity for hearing to allow appellant to “verify and substantiate the truth” of the facts alleged in his motion.

We find no abuse of discretion on the part of the trial judge.

Hearing was had upon the motion for new trial. Appellant’s counsel announced ready and proceeded to prove that the subpoenas he had caused to issue for the Juror Gay and another juror and which had been served had been cancelled upon order of the trial judge and the witnesses excused.

The evidence that was heard by the trial court at the hearing on the motion for new trial was not upon the issue of whether there was jury misconduct, as alleged, but upon the question of whether the trial judge had erred in excusing the witnesses and refusing to hear evidence in support of such allegations.

In the absence of any verification of the allegations made on information and belief and of the affidavit of the alleged informant, we find no merit in the contention that the undisputed facts show that appellant was deprived of his constitutional right to a fair and impartial trial because of misconduct by the jury during their deliberations or to a free, fair and full presentation of his evidence in support of his allegations of jury misconduct.

The remaining claim of error relates to the insufficiency of the evidence to sustain the conviction and the failure of the trial court to charge on circumstantial evidence.

We find the evidence sufficient to sustain the conviction of the appellant as a principal with James Edward Graves in the murder during the commission of robbery. See White v. State, 154 Tex.Cr.R. 489, 228 S.W.2d 165.

The contention that a charge on circumstantial evidence was required is overruled.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING.

MORRISON, Judge.

Appellant contends that we were in error in considering the affidavit made by Juror Gay on the day set for hearing on the motion for new trial because the same was taken before Joe S. Maida III, an Assistant District Attorney who participated in the trial. Reliance is had upon Melton v. State, 78 Tex.Cr.R. 539, 182 S.W. 289, which holds that an affidavit taken before the State’s counsel should not he considered by the trial court when offered at a hearing on a motion for new trial.

When Juror Gay swore at the hearing that the affidavit made by appellant’s counsel was untrue, such testimony rendered appellant’s motion for new trial insufficient as a pleading and under the rule announced in Vowell v. State, supra, and the action of the court in overruling the motion at any stage of the proceeding could not be assigned as error.

Appellant’s motion for rehearing is overruled.


text:
    Raul ABEYTA, Appellant, v. The STATE of Texas, Appellee.
    No. 38542.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

This is an appeal from the County Court at Law in El Paso County from an order dismissing an appeal from the Corporation Court from the City of El Paso in a vagrancy case with a $200.00 fine imposed. A concise statement of the proceeding is contained in the agreed statement of facts.

The bond from the Corporation Court was defective because it did not comply with the terms of Art. 833, Vernon’s Ann.C.C.P., requiring that it be double the amount of the fine, and the appeal was dismissed. Appellant, by order, on the 5th day of May, 1965, was given ten days to file a corrected bond. A copy of the order was mailed to appellant’s counsel on May 12, 1965. On the 25th day of May the appeal was dismissed because no corrected bond had been filed.

On the 3rd day of June a motion to set aside the dismissal order was filed. This was denied, and appellant appealed.

Under Article 835, V.A.C.C.P., the trial court allowed ten days for a new bond, but the terms were not complied with. We think the terms of the order were reasonable. Under Article 836, C.C.P., the appellant has ten days after appeal to file a bond. The statutory time and the time allowed by the court were not complied with. The trial court did not err in dismissing the appeal.

The judgment is affirmed.


text:
    Arthur Gordon ABEL, Appellant, v. The STATE of Texas, Appellee.
    No. 38414.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 13, 1965.
    Second Motion for Rehearing Denied Nov. 24, 1965.
    W. W. “Bill” Tupper, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for nighttime burglary of a house; the punishment, enhanced under Art. 62, Vernon’s Ann.P.C., by reason of a prior conviction for an offense of like character, twelve years.

The state’s evidence shows that on the night in question a building occupied by the Knox Motor Company in the city of Ozona was broken into and burglarized. When Mr. Knox, the owner, entered the building the next morning he found the safe, which had been opened, and a cash register lying on the floor. Papers from the safe, some of which had been partially burned, were on the floor. The hose from a cutting torch led from the shop into the office. Entry into the building had been made through a large sliding door in the rear which had been forced open. Approximately $250 in cash and some tools were missing from the building.

It was further shown that on the night of the burglary a 1957 Dodge automobile which appellant had recently purchased was seen parked at the north entrance of a parking lot of the motor company.

Appellant was arrested by certain officers in Jones County and, after being returned to Crockett County by Sheriff Billy Mills, made and signed a written confession which was introduced in evidence as state’s exhibit # 4.

Prior to admitting the confession in evidence, a hearing was held by the court, in the absence of the jury, on the question of its admissibility.

At the hearing, Sheriff Mills testified that on December 20th he took appellant into custody in Jones County and returned him to Crockett County, arriving around midnight. Appellant was placed in jail and the next morning was taken before a justice of the peace, who fixed his bond at $5,000. When arraigned, appellant was told that he had the right to talk to a lawyer and to make telephone calls. Appellant was then returned to jail and thereafter made various telephone calls. On December 24, appellant informed the sheriff that he wanted to make a statement. After being interrogated for some thirty minutes and duly warned, appellant made and signed the written confession. The sheriff swore that no threats or promises were made to appellant and that the statement was voluntarily made. No evidence was adduced by appellant.

Before the confession was admitted in evidence, an independent finding was made by the court, duly filed of record, that appellant was duly warned and voluntarily made the confession.

In his confession appellant admitted having entered and burglarized the building on the night in question. He related that he drove from his home in Hamlin to Ozona in a 1957 Dodge automobile. He stated that after dark he parked the automobile on the north side of the building and then broke into the building through a sliding door. He then proceeded to pull a welding rig up close to the office and cut through the safe door and remove certain records and money therefrom. Appellant stated that when he left he took some tools with him and that the next morning he went to the bus station and shipped the tools, with some money and clothing, to Hamlin.

It was further, shown that on December 16, 1962, a freight bill was issued by the Oilfield Bus Lines at Sonora to one Sonny Able for the shipment of some clothes and tools to the same person at Hamlin, Texas. A box recovered by Officer Stinnett from the bus station in Hamlin, addressed to Sonny Able, was shown to contain certain tools missing from the Knox Motor Company building.

In proof of the prior alleged conviction, the state introduced in evidence certified copies of the judgment and sentence in Cause No. B-2097 on the docket of the 161st Judicial District Court of Ector County, which showed that on November 17, 1959 the defendant therein was finally convicted of the offense of burglary. Appellant was identified at the trial by an assistant district attorney and a deputy sheriff of Ector County as the person so convicted.

Appellant did not testify or offer any witnesses in his behalf.

Error is urged to the court’s action in refusing appellant’s oral request for a postponement of the case.

Art. 540, Vernon’s Ann.C.C.P., provides for the continuance of a criminal case on the written application of the state or the defendant. Not having complied with the statute, appellant is in no position to complain of the court’s action, and nothing is presented for review. Berry v. State, 165 Tex.Cr.R. 454, 308 S.W.2d 877.

Error is also urged to the court’s refusal to grant appellant’s motion that the jury be required to make a separate finding as to the voluntary nature of the confession.

We perceive no error. As heretofore shown, the court held a hearing in the absence of the jury on the question and made an independent finding, before admitting the confession in evidence, that it ■was voluntarily made. The voluntary nature of the confession was then submitted to the jury under appropriate instructions. Such procedure by the court was in compliance with that prescribed in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 908, and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.

We overrule appellant’s contention that the evidence is insufficient to support the conviction. The evidence presented by the state shows the commission of a burglary by someone. Appellant’s confession may be used to identify him as the guilty party. Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411; Earl v. State, 170 Tex.Cr.R. 540, 342 S.W.2d 328.

We find no merit in appellant’s contention that the court erred in failing to require the jury to find that the confession was corroborated. No request was made for such a charge. Had a request been made, the charge would not have been required under the facts, where there was no doubt that the crime had been committed and appellant’s agency was shown by his confession. Hernandez v. State, 165 Tex.Cr.R. 329, 307 S.W.2d 88.

Appellant’s remaining complaints to the court’s ruling on the admission of evidence have been considered and are overruled.

The freight bill issued by the Oilfield Bus Lines at Sonora for shipment of freight to one Sonny Able at Hamlin was admissible as a business record, under the provisions of Art. 3737e, Vernon’s Ann.Civ. Statutes.

The evidence offered by the state showing recovery of the box of tools addressed to Sonny Able was not subject to the objection that it was obtained as the result of an illegal search and seizure, as the box was not recovered as the result of a search but was recovered by the officer at the bus station after appellant had told the sheriff where it might be found.

The sentence imposed by the trial court orders that appellant be confined in the Texas Department of Corrections for a term of “not less than two nor more than twelve years.”

The sentence is reformed so as to provide no minimum punishment and to read that appellant be confined for a term of twelve (12) years. Art. 62, V.A.P.C.

As reformed, the judgment is affirmed.

Opinion approved by the court.


author: WOODLEY., Judge.

text:
    William V. MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 38512.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    , E. A. Cade (on appeal), Dallas, for appellant.
    Henry Wade, Dist. Atty., W. John Allison, Jr., Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY., Judge.

The offense is drunk driving; the punishment, ten days in jail and a fine of $50.

Trial was before the court on a plea of not guilty.

Testimony of Patrolman B. J. Clark, the arresting officer, was to the effect that he observed a motor vehicle traveling at a high rate of speed through an intersection; that he pursued the vehicle which he clocked at speeds exceeding 100 miles per hour and finally stopped it.

Appellant was identified as the driver of said vehicle.

Patrolman Clark and two other officers who observed appellant after he was stopped testified as to appellant’s appearance and the odor of alcohol on his breath and expressed the opinion that he was intoxicated.

Kirby Dale Ballard, who was riding with appellant, testified that he had borrowed the car but he did not drive, it because he was too drunk. He testified that appellant drank about six bottles of beer, but expressed the opinion that appellant was not intoxicated.

As a witness in his own behalf, appellant admitted having drunk 5 or 6 bottles of beer while he was in company with Ballard, but denied that he was intoxicated,

The trial judge resolved the issue against appellant and the evidence is sufficient to sustain his findings.

The sole ground relied upon for reversal is the claimed error of the court in admitting into evidence testimony of the arresting officer B. J. Clark as to an extraneous offense m that the witness was permitted to testify that the reason the officers handcuffed appellant was: We found a pistol under the driver’s seat of the car.”

It is the rule that in a trial before the court there is a presumption that the court disregarded all inadmissible evidence. Tealer v. State, 163 Tex.Cr.R. 629, 296 S.W.2d 260; Slater v. State, 169 Tex.Cr.R. 587, 336 S.W.2d 167; Johnson v. State, Tex.Cr.App., 378 S.W.2d 334.

Be this as it may, the testimony as to the finding of a pistol under the driver’s seat was admissible. Riojas v. State, 102 Tex.Cr.R. 460, 277 S.W. 696; Ross v. State, 169 Tex.Cr.R. 313, 334 S.W.2d 174; Yaffar v. State, 171 Tex.Cr.R. 341, 349 S.W.2d 730, and cases cited; Beeler v. State, Tex.Cr.App., 374 S.W.2d 237 (cert. denied); Dowdy v. State, Tex.Cr.App., 385 S.W.2d 678.

The judgment is affirmed.


text:
    Bernice WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 38605.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Frank C. Price, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant entered a plea of not guilty on a trial before the court without a jury to the offense of unlawfully carrying a pistol. The court found the appellant guilty and assessed his punishment at a fine of $200.

Officer Crawford testified that in responding to a disturbance call he saw the. appellant on the sidewalk in front of a tav-; ern; that he asked the appellant if he had a pistol in his car, and the appellant replied, “Yes, sir.” Upon searching appellant’s car which was parked nearby on the street, Crawford found a .38 revolver containing five live shells in the glove compartment; and that he then showed the pistol to the appellant and asked him if it was his, and he said it was. The officer further testified, that the appellant was threatening and cursing the complainant in his (officer’s) presence.

During a “hearing” requested by the appellant which is designated as “voir dire” in the statement of facts, the appellant testified that when asked he told Officer Crawford that he had a pistol in his car, and gave him the key and he opened the glove compartment and removed the pistol. The appellant further testified that about one hour before he saw Officer Crawford he had taken the pistol out of a pawn shop, and had stopped at the tavern and then was going home.

In considering the evidence, the trial judge, when sitting without a jury is authorized to accept or reject any or all of the testimony. 24 Tex.Jur. (2) 394, Sec. 725; Miller v. State,Tex.Cr.App., 388 S.W.2d 186.

The court resolved the issues of fact against the appellant.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Higinio SOTO, Appellant, v. The STATE of Texas, Appellee.
    No. 38589.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Norman S. Spencer, Jr., Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State,
   MORRISON, Judge.

The offense is robbery by assault, the punishment, 25 yc-.rs.

The statement of fact> appearing in the record has not been approved by either the Court or counsel for the State and appellant. In order to be considered by this Court, a statement of facts must be agreed to by counsel for the State and appellant or approved by the trial judge. Works v. State, 171 Tex.Cr.R. 3, 343 S.W.2d 706. See also Article 759a Vernon’s Ann.C.C.P.

There are no formal bills of exception.

The proceedings appear to be regular, and the judgment is affirmed.