text:
    Ex parte J. F. ROMINES.
    No. 40696.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1967.
    Paul Lyle, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

Petitioner is confined in the Department of Corrections under a life sentence from Hale County growing out of robbery by assault with prior convictions alleged for enhancement. This conviction was affirmed by this Court in Romines v. State, 155 Tex.Cr.R. 15, 229 S.W.2d 805.

Application for writ of habeas corpus was made to the Honorable James A. Joy, Judge of the District Court of Hale County, in which it was alleged that the Hale County conviction was void because petitioner was indigent and was not represented by an attorney when he was tried in the District Court of Lamb County for the offense of felony theft in 1938, which was one of the prior convictions alleged for enhancement in the Hale County robbery conviction. The Hale County indictment alleged three rather than two prior convictions.

At the hearing before Judge Joy it was developed without controversy that petitioner was not represented by counsel at his 1938 trial in Lamb County, that he was indigent and that his request for counsel was denied by the Judge presiding at such trial. Petitioner admits, however, that he was represented by counsel when he was tried and convicted for the offense of felony theft in Lubbock County in 1942, which was one of the prior convictions used to enhance.

This Court has held in Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165, and Thompson v. State, 339 S.W.2d 209, that felony theft is an offense of like character to the offense of robbery by assault.

The punishment under Article 1408 and Article 62, Vernon’s Ann.P.C. for a second conviction for robbery is life imprisonment.

In Ex parte Ranels, 155 Tex.Cr.R. 560, 237 S.W.2d 317, this Court held that an indictment which charged no-capital offense of robbery with a prior conviction for burglary with intent to commit theft is sufficient to sustain a conviction under Article 62, supra.

Since no attack is made upon the Lubbock County conviction and since under Articles 1408 and 62, supra, petitioner’s confinement under a life sentence is authorized, the relief prayed for is denied.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    John Gasper RAMOS, Appellant, v. The STATE of Texas, Appellee.
    No. 40393.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Rehearing Denied Dec. 6, 1967.

      Clyde W. Woody (on appeal), Marian S. Rosen (on appeal), William M. LauBach (on appeal), Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from a conviction for murder without malice under the provisions of Article 802c, Vernon’s Ann.P.C.; the punishment assessed by the jury, four (4) years confinement in the Texas Department of Corrections.

The deceased, Fred Peebles, was an off-duty, uniformed Harris County deputy sheriff, escorting a funeral procession when he died on the afternoon of September 23, 1965. He was standing astride his motorcycle directing traffic as the funeral procession passed onto the Eastex Freeway in Harris County, Texas when an automobile driven by appellant entered the feeder lane (an incline onto the freeway), hit the motorcycle and the deceased, dragged the motorcycle and deceased 277 feet, struck the freeway median railing, and came to a stop. There were no skid marks. The speed of appellant’s car was approximated by various witnesses from 60 to 70 miles per hour.

After striking the median railing the appellant left his automobile, jumped the median rail and ran off, attempting to remove his shirt. In his flight from the scene he was also seen to climb a fence at the edge of the freeway. A passing motorist, Carl Simmons, tried to apprehend him, whereupon appellant pulled a knife on Simmons and threatened to kill him.

Thereafter Simmons returned to the freeway, obtained the assistance of Officer B. L. Goodson, and then in company with Goodson and another passing motorist, Cecil Kensey, searched for and found appellant. Simmons identified appellant as the driver of the automobile which struck the deceased and expressed the opinion that appellant was intoxicated. His testimony as to appellant’s intoxication was corroborated by the witness Kensey and Officer Goodson. Appellant’s behavior was violent and belligerent at the time of his arrest and he had to be restrained on the way to the hospital and police station, and at the hospital.

Dr. Joseph A. Jachimczyk, Harris County Medical Examiner, testified that Peebles’ death was caused by a fractured skull, a broken neck, a crushed left chest and a broken back. The deceased apparently died instantly or immediately after the collision.

In his first ground of error, appellant contends the trial court committed reversible error in admitting into evidence statements attributed to the appellant subsequent to the collision by the State witnesses Simmons and Goodson. It is appellant’s position that (1) the statements were not admissible as res gestae, utterances, and further that (2) if they were res gestae, they were still inadmissible in absence of a compliance with the statutory warnings given by a magistrate as required by Article 15.17, Vernon’s Ann.C.C.P.

Simmons, after testifying to his first encounter with the appellant, related, without objection, that upon appellant’s apprehension by Officer Goodson appellant again threatened to kill him (Simmons) and stated that if he did not, his friends would.

On re-direct examination of the witness Simmons, the following testimony was elicited:

“Q. After the defendant was caught by you and Officer Goodson, did he say anything about this collision?
“A. Yes, he did.
“Q. What was that, sir?
“A. I informed him he had killed a man over there, a Deputy Sheriff—
“Mr. Norris: I object to anything stated by this man as being too remote, immaterial and ‘irrelevant.
“Mr. Applewhite: I believe we went over that a while ago.
“The Court: Overruled.
“Q. (by Mr. Applewhite) What did he say?
“A. (by Witness) He said he hadn’t killed nobody. He had been in a fight.
“Q. Been in a fight?
“A. Yes, sir.
“Q. Did he say anything else that you remember ?
“A. No sir, other than I was a liar and an s. o. b. and he would kill me.”

On direct examination of Officer Good-son, State’s counsel elicited testimony concerning appellant’s cursing and abusive language at time of arrest. Over objection (irrelevant, immaterial and while appellant was under arrest) the witness was permitted to testify as follows:

“Q. (by Mr. Applewhite) What are some of the things he said ?
“A. (by Witness) He stated he had been in a fight in a bar uptown somewhere and kept telling us he hoped the son-of-a-bitch he hit died.
“Q. This was one continuous outburst on his part, these statements?
“A. Yes sir, the whole time we were there. The part of him being in a fight at a bar we had no knowledge of that happening, if it had.”

The statements attributed to the appellant occurred within approximately 15 minutes after the collision and at the very time of his arrest. At such time the record reveals that the appellant had fled the scene of the collision, as described above, had pulled a knife and threatened the witness Simmons, and when arrested, appellant had been running, was sweaty, breathing heavily, was cursing and using abusive language, acted belligerent and was completely uncooperative. Such conduct continued for some time following the arrest.

In Preston v. Commonwealth, 406 S.W.2d 398, the Court of Appeals of Kentucky, in discussing the admissibility of evidence as res gestae, said:

“According to Wigmore, and it is demonstrably so, courts in general have reduced the term ‘res gestae’ to a useless and misleading shibboleth by embracing within it two separate and distinct categories of verbal statements, one of which is truly an exception to the hearsay rule and the other of which is not, the two being admissible in evidence under different principles. Wigmore on Evidence, § 1767 (Vol. VI, p. 182). When the utterance of certain words constitutes or is part of the details of an act, occurrence or transaction which in itself is relevant and provable, the utterance may be proved as a verbal act, just as may be a visual observation of an event. This is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place. One of the several qualifications for admissibility of this type of statement is that ‘the words must be contemporaneous with the conduct, or, in the usual phrase, must accompany the act.’ Id., § 1776 (Vol. VI, p. 197).
“The character of utterance that is admissible as a genuine exception to the hearsay rule, also under the customary label of ‘res gestae,’ is a spontaneous exclamation, which may or may not be exactly contemporaneous with the provable act or event. Id., § 1745 et seq. (Vol. VI, pp. 131 et seq.). See Norton’s Adm’r v. Winstead, 218 Ky. 488, 291 S.W. 723 (1927). See also note, Res Gestae in Kentucky, by H. E. Edmonds, 39 Ky.L.J. 200 (1950-51). The typical case presented is a statement or exclamation, by a participant, immediately after an injury, declaring the circumstances of the injury, or by a person present at an affray, a railroad collision, or other exciting occasion, asserting the circumstances of it as observed by him.’ Wigmore on Evidence, § 1746 (Vol. VI, p. 134). This type of statement is received in a testimonial capacity, as evidence of the truth of the fact asserted. Ibid.
“ ‘It will be seen that these two classes of statements or exclamations are based on very different principles, and that the question of their admissibility must be determined by the principles applicable to the class within which they fall. * * * The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether that nervous excitement has died away,’ etc. Keefe v. State, 50 Ariz. 293, 72 P.2d 425, 427 (1937).”

It is the position of the State in the case at bar that the declarations of the appellant were incoherent utterances of an intoxicated person, and were admitted at the time the question of intoxication was still in issue.

It appears, therefore, that the testimony offered by the State as to the acts, conduct and declarations of appellant as described above was not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place at the time appellant was apprehended shortly after leaving the scene of the collision. In other words, appellant’s statement as to a fight in a bar was admitted to show the details of a relevant occurrence which was provable, and was not admitted for the purpose of proving that in fact there had been a fight in a bar. See Wharton’s Crim.Evid. (12th Ed.) Vol. 1, Sec. 257, p. 588; State v. Tyron, 145 Conn. 304, 142 A.2d 54.

We therefore hold that the statements complained of were admissible under the “verbal act” doctrine, sometimes referred to as the so-called res gestae rule. See 24 Tex.Jur.2d, Sec. 581; Evans v. State, Tex.Cr.App., 401 S.W.2d 602; Johnson v. State, Tex.Cr.App., 379 S.W.2d 914; Wilder v. State, 169 Tex.Cr.R. 255, 333 S.W.2d 367; Byers v. State, 166 Tex.Cr.R. 34, 310 S.W. 2d 331, 333.

In view of our holding it is unnecessary to determine whether such statements were also admissible as a spontaneous exclamation, a genuine exception to the hearsay rule.

It is further observed that a portion of the complained of testimony was previously admitted into evidence without objection. It should also be remembered that if any portion of the entire conversation was properly admissible as res gestae, then the whole conversation is admissible where only a general or blanket objection is interposed. Phillips v. State, 137 Tex.Cr.R. 206, 128 S.W.2d 393. In other words, where a party offers “an entire conversation, and the opponent merely objects to the whole offer, if parts of the offer are admissible the judge will not be guilty of error for overruling the objection.” McCormick and Ray, Texas Law of Evidence, 2nd Ed., Sec. 25. The only objection interposed was a general one. The trial court did not err in admitting these statements.

We further reject appellant’s assertion that the admissibility of such statements is governed by Article 15.17, supra. We overrule the contention that such article is applicable to res gestae. The legislative history of the article indicates the exact opposite. To adopt the construction urged by appellant would have the practical effect of rendering inadmissible all res gestae declarations.

Appellant’s first ground of error is overruled.

In his second point of error appellant complains that the trial judge com mitted reversible error in permitting the introduction of a simple assault conviction as part of appellant’s prior criminal record at the penalty stage of the proceedings under Article 37.07, Sec. 2, V.A.C.C.P. .Such conviction occurred on October 15, 1965, in the County Criminal Court at Law No. 4 of Harris County where the appellant was originally charged by information with the offense of aggravated assault. Appellant contends that the phrase “prior criminal record” as used in Sec. 2(b) of Article 37.-07, V.A.C.C.P. is ambiguous rendering the statute unconstitutional. It is further contended that if the statute is not constitutional for this reason, evidence as to the prior criminal record of an accused should be limited to those offenses which bear a definite relationship to the primary charge. Appellant argues that a conviction for simple assault bears no relation to the charge of murder without malice under the provisions of Article 802c, V.A.P.C., an offense that has no character of malice or intent.

It is true that the phrase “prior criminal record” as used in Article 37.07, Sec. 2(b), supra, is not defined for the purposes of the statute. It is a cardinal rule of statutory construction, however, that where words are not so defined, then “the words employed are ordinarily given their plain meaning, without regard to the distinction usually made between the construction of penal laws and laws on other subjects, unless the act clearly shows that they were used in some other sense.” 53 Tex.Jur.2d, Statutes, Sec. 146, pp. 212-213.

Even if “prior criminal record” can be said to have no plain meaning, the fact that it is indefinite or uncertain in some respects so as to creat a doubt as to its meaning and to necessitate judicial construction would not invalidate the statute. 53 Tex.Jur.2d, Statutes, Sec. 24.

We reject appellant’s contention that Article 37.07, supra, is unconstitutional.

In Rojas v. State, Tex.Cr.App., 404 S. W.2d 30, a prosecution for the felony offense of driving while intoxicated, we held in construing Art. 37.07, Sec. 2(b), supra, that a conviction for the misdemeanor offense of drunken driving was admissible as a part of the defendant’s prior criminal record.

Subsequently in Fuller v. State, Tex.Cr.App., 409 S.W.2d 866, involving an assault to murder prosecution, we held, in interpreting the same statute, that a conviction for the offense of simple assault in the Justice Court was admissible as a part of the defendant’s prior criminal record.

While the conviction introduced in each case bore some definite relationship to the offense charged, we did not intend to leave the impression that this was a necessary prerequisite to the introduction of a previous conviction as part of a defendant’s prior criminal record at the penalty stage of the proceedings under Article 37.07, supra.

We hold that the prior conviction of simple assault was admissible as part of appellant’s prior criminal record in the case at bar. We do not agree that under the provisions of Article 37.07, supra, in effect at time of appellant’s trial, evidence as to appellant’s prior criminal record should have been limited to those offenses which bear a definite relationship to the instant charge. No such legislative intent is indicated.

Appellant’s second ground of error is overruled.

It should be observed that Article 37.07, supra, has been amended effective August 28, 1967. Acts 1967, 60th Leg., Reg.Sess., Ch. 6S9, p. 1740. Article 37.07, Sec. 3(a), as amended, now reads in part:

“the term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense.”

It would thus appear in the future that a simple assault conviction occurring in a court of record either as a primary charge or as a lesser and included offense would be admissible as part of a defendant’s prior criminal record without regard to its materiality to the offense for which he is on trial; but if the simple assault conviction occurred in a Justice or Corporation Court, such conviction is inadmissible unless material to the offense charged.

While the necessity of such distinction escapes this writer, it appears that even if the amended version of Article 37.07, supra, had been in effect at time of appellant’s trial, the simple assault conviction, being in a court of record, would have been admissible regardless of materiality.

In his third ground of error appellant contends that the trial court committed reversible error in permitting the deceased’s wife to testify to matters irrelevant and immaterial and only calculated to prejudice the jury.

As a State’s witness, at the guilt stage of the proceedings, Mrs. Peebles testified she had been married to the 30 year-old deceased deputy sheriff who had been so employed for six (6) years; that he worked in his off-hours as a motorcycle escort to supplement his salary. She identified her husband from a photograph, which was then introduced into evidence. All of the above evidence was admitted without objection.

Appellant’s general objections were promptly sustained as to the following questions by the prosecutor:

“1. Did you and Mr. Peebles have any children ?
“2. How long were you married?
“3. Do you know how much money he made with the Sheriff’s Department? .
“4. Did he sometimes work extra jobs to provide for you and your family?”

In answering the objection to the first of these questions, the prosecutor stated: “I think the jury has a right to know for the purpose of punishment.” He was overruled.

In Ainsworth v. State, 122 Tex.Cr.R. 483, 56 S.W.2d 457, relied upon by appellant, the deceased’s son was allowed to testify over appellant’s objection that his mother was left with eight (8) children ranging in age from eighteen years to six months; that they were in poverty and had to pick cotton for a living. We adhere to the correctness of our holding in Ainsworth. We do not, however, deem it controlling here. In addition to the factual differences between the two cases, appellant’s objections in the case at bar were all sustained and no prejudicial testimony was heard by the jury.

Appellant, nevertheless, contends that the mere sustaining of objections to improper questions which violate the rights of the accused does not vitiate the harm, and relies upon Elizondo v. State, 130 Tex. Cr.R. 393, 94 S.W.2d 457.

In Elizondo the trial court sustained appellant’s objection to the prosecutor’s question, “How many children did you make orphans when you killed David Gomez?” There the trial court certified to this Court that the asking of the question was extremely prejudicial and the prejudice created was not cured by sustaining the obj ection.

This Court in reversing Elizondo’s conviction stated: “In view of the certificate of the trial judge that the question was obviously of such a harmful nature as to prejudice appellant’s rights, we are constrained to hold that reversible error is manifested.”

We cannot agree that this holding is applicable to the case at bar. The trial court has certified no similar findings to this Court, nor were the State’s questions to which the objections were sustained of the same inflammatory nature (assuming the guilt of the accused).

We believe that the proper disposition of this ground of error is governed by our decisions in Chapman v. State, 136 Tex.Cr.R. 285, 124 S.W.2d 112; Cavarrubio v. State, 160 Tex.Cr.R. 40, 267 S.W.2d 417 and Salazar v. State, Tex.Cr.App., 397 S.W.2d 220.

In Chapman v. State, supra, a witness, unrelated to the deceased, testified that the deceased had two boys and they were in the courtroom at the time. There the court held that the matter was not of sufficient importance to reflect error.

In Cavarrubio v. State, supra, the injured party in an assault to murder case was permitted to testify, over objection, that his family consisted of a wife and two small children. This Court in affirming the conviction, reviewed a wealth of cases on the subject, and while recognizing the inquiry as being irrelevant and immaterial, concluded that this point alone did not constitute reversible error.

In Salazar v. State, supra, the father of the deceased testified that the deceased was married and had a family of eight. The appellant’s objection (“highly improper”) and motion for mistrial was overruled. Citing Cavarrubio, this Court affirmed the conviction, concluding that such irrelevant and immaterial testimony alone cannot constitute reversible error.

The only testimony of Mrs. Peebles that the jury was permitted to hear was that to which appellant did not object. Every one of appellant’s objections to questions propounded by the State were promptly sustained and the witness was not permitted to answer. It is our considered judgment that these facts do not constitute reversible error.

Appellant’s third ground of error is overruled.

In his fourth and final ground of error appellant contends that the trial court committed reversible error in not declaring a mistrial when the prosecutor engaged in an inflammatory and prejudicial jury argument. Appellant complains of four different statements.

The first statement is as follows:

“Was he making any sense in his statements? He talked like a drunk. He was saying things that didn’t make sense, something here and something there. Did any of the witnesses ever change their mind that he was intoxicated. No, they didn’t. UNDER OUR LAWS AFTER A MAN IS ARRESTED HE CANNOT BE COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF. HE DOESN’T HAVE TO TAKE THE STAND. IT’S IN THE CHARGE ** ”

Appellant then interrupted the prosecutor’s argument with an objection and moved for a mistrial; the trial judge overruled both.

This Court has held that reversible error is not committed when the prosecutor systematically reads from the court’s charge that portion of the instruction pertaining to the defendant’s failure to testify without extraneous comment. Bryant v. State, Tex.Cr.App., 397 S.W.2d 445 (1965); Reese v. State, 142 Tex.Cr.R. 254, 151 S.W.2d 828, 837 (1941).

In the present case the prosecutor was not systematically reading from the court’s charge, but was narrating what the witnesses had testified and then went immediately to the complained of argument.

The well-settled rule in Texas for many years has been that “[f]or the argument offend against the statute, Article 38.08 V.A.C.C.P. [old Art. 710], prohibiting allusion to or comment upon the failure of a defendant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the defendant’s failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion thereto.” Richardson v. State, 172 Tex.Cr.R. 299, 356 S.W.2d 676 (1962); Johnson v. State, 167 Tex.Cr.R. 598, 322 S.W.2d 540 (1959); Potts v. State, 167 Tex.Cr.R. 240, 319 S.W.2d 304 (1958); Hart v. State, 163 Tex.Cr.R. 472, 293 S.W.2d 659 (1956).

This standard is similar to the test adopted by many of our Federal Courts. In Davis v. United States, 357 F.2d 438, the Fifth Circuit Court of Appeals said:

“The facts and circumstances of each case must be carefully analyzed to determine ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ”

See also Hayes v. United States, 368 F.2d 814 (9th Cir.-1966); Knowles v. United States, 224 F.2d 168, 170 (10th Cir.-1955); United States ex rel. D’Ambrosio v. Fay, 349 F.2d 957 (2nd Cir.-1965).

Applying such test, we do not construe the statement by State’s counsel as referring to appellant’s failure to testify. The Court properly charged on the law relating to the appellant’s failure to testify. See Fifth Amendment, United States Constitution; Article I, Section 10, Texas Constitution, Vernon’s Ann.St.; Article 38.08 (former Art. 710), V.A.C.C.P. Whether he did so routinely or as a result of a request does not appear of record. At least no objection or exception appears in the record. Further, before State’s counsel was interrupted in mid-sentence by the general objection, he appears to have been briefly referring to the general rights of any accused. What he may have said about this appellant would be a matter of conjecture.

Even if we had no statute (Art. 38.08, supra) and even if the argument did constitute a comment on appellant’s failure to testify in violation of his federal constitutional rights, we conclude the same is harmless error, finding beyond a reasonable possibility that it might have contributed to appellant’s conviction. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed. 2d 106; Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.

In Chapman v. State of California, supra, the United States Supreme Court concluded “ * * * that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not resulting in the automatic reversal of the conviction.” The rule adopted by the Supreme Court for determining harmless error is that set forth in Fahy v. State of Connecticut, supra.

The second statement by the prosecutor complained of by appellant is as follows:

“When you get in that jury room, consider all the evidence the State has presented to you and I know you will do what you think is right and you can walk up to Mrs. Peebles and her children * *

At this juncture appellant’s counsel then interrupted the argument with an objection. The trial court sustained the general objection and instructed the jury not to consider the remarks for any purpose; admonished State’s counsel to stay in the record, but overruled appellant’s motion for mistrial.

We cannot conclude in light of the entire record and the prompt action of the trial court that such argument is of such harmful character as to demand reversal. See Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548; Brown v. State, 121 Tex.Cr.R. 528, 51 S.W.2d 616.

The third statement made by the prosecutor and complained of by appellant is as follows:

“See how the defendant is protected. That’s the way it should be because no man should be convicted if he’s not guilty and I would never participate in that kind of trial. If I have an indictment and after observing it I do not feel he’s guilty * * * »

Appellant interrupted and complained that the prosecutor was outside the record. The trial judge sustained the objection and instructed the jury upon request not to consider it for any purpose and cautioned counsel to stay in the record. Appellant made no motion for mistrial nor any complaint that such remark was harmful or prejudicial.

If the prosecutor’s remark can be interpreted as an expression of his personal opinion of the guilt of the appellant, then such argument would be improper. Where, however, an instruction to disregard is not refused, such conduct will not cause a reversal. 1 Branch’s Anno. P.C.2d, Sec. 385, p. 406.

After appellant’s objection was sustained he appears to have been satisfied because he asked the court for no further relief. Appellant is now in no position to complain of said statement. Hughes v. State, Tex.Cr.App., 409 S.W.2d 416 (1966); Van Skike v. State, Tex.Cr.App., 388 S.W.2d 716 (1965); Matlock v. State, Tex.Cr.App., 373 S.W.2d 237 (1963).

The fourth statement made by the prosecutor of which appellant complains is where the prosecutor after reviewing all the evidence showing appellant’s intoxication said:

“Now, if you do not believe that man was intoxicated you go back there and say not guilty and I would have to say you must be the stupidest * * * ”

Appellant interrupted the prosecutor’s argument with an objection (highly improper and amounting to a threat to the jury) and moved for a mistrial; the trial judge overruled both.

It is well-settled that the prosecutor can argue his opinions concerning issues in the case to the jury so long as the opinions are based on evidence in the record, and not as constituting unsworn testimony. Van Skike v. State, Tex.Cr.App., 388 S.W.2d 716 (1965); Johns v. State, 157 Tex.Cr.R. 401, 249 S.W.2d 61 (1952); Vineyard v. State, supra.

We view this argument as the prosecutor’s opinion of the evidence and not as constituting unsworn testimony.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Pedro MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40643.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    No attorney of record on appeal for appellant.
    Ogden Bass, Dist. Atty., Wallace N. Shaw, Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order denying the relief prayed for after a hearing on a petition for writ of coram nobis, denominated by this Court as an application for writ of habeas corpus.

Appellant’s right to appeal exists because the writ was granted, and after hearing, the relief prayed for was denied. Nichlos v. State, 158 Tex.Cr.R. 367, 255 S. W.2d 522, 526. While it is true that the Court denied the relief prayed for because he thought he had no legal authority to grant the same, we will for the purposes of this appeal decide from this record whether the Court erred in denying the relief prayed for. Ex parte Coleman, 157 Tex.Cr.R. 37, 245 S.W.2d 712, 717.

It was established at the hearing that on July 12, 1966, appellant was arrested on a complaint charging him with aggravated assault upon a minor, which offense was alleged to have occurred on July 10. On July 12, appellant executed a waiver of the services of an attorney, entered a plea of guilty and was sentenced to two (2) years in the county jail. It is from this conviction that petitioner seeks relief.

All that was shown was that he had been a model prisoner and that he had plead guilty upon the assurance that he would get no more than two years. It was shown that he had a limited comprehension of the English language. It was further shown that on the day charged he had struck or slapped his 11 year old daughter. Such proof would not authorize the granting of the writ.

The judgment denying relief is affirmed.

Petitioner is not precluded by this affirmance from seeking relief by habeas corpus from the trial court or a district court if he has other grounds.


author: WOODLEY, Presiding Judge.

text:
    Johnny JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40613.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Paul W. Anderson, Marshall, for appellant.
    Charles A. Allen, Dist. Atty., Marshall, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is murder; the punishment, life.

Appellant’s brief sets forth the point of error preserved by his Formal Bill of Exception No. 2.

The evidence adduced at the trial is not brought forward in the record on appeal.

There are two formal bills of exception. The first reflects that the indictment under which appellant was arraigned and which was read to the jury, and to which appellant entered his plea of not guilty on August 31, 1966, alleged that appellant voluntarily killed Orethia Stillman and that on the following day the court granted the state’s motion and the district attorney, over objection, was permitted to amend the indictment so as to show the name of the person alleged to have been killed as Orethia Spillman (by changing the letter to “p”) and appellant was required to plead to the indictment as amended.

Bill of Exception No. 2 reflects that after the state had rested, the defendant moved for instructed verdict and in support thereof introduced evidence, including the death certificate, showing that the name of the person killed was Oretha Spearman, and testimony of members of her family that neither the deceased nor any member of the Spearman family had ever spelled their name or gone under the name of Spillman or Stillman.

The state’s reply brief takes the position that the trial judge did not commit error by allowing the amendment of the indictment for the reason that the names Stillman and Spillman are idem sonans, and that the evidence clearly shows that the decedent went by the name Spillman in the City of Waskom, Texas.

We find nothing in the record to support the state’s contention and again point out that the record contains no statement of facts or transcript of the evidence.

We do not understand that the rule of idem sonans permits the amendment of an indictment as to the name of the decedent or injured party. Sound, not spelling of a name, controls in determining similarity of names. Fowler v. State, Tex.Cr.App., 379 S.W.2d 345.

It has been held that when the question of idem sonans arises at the trial it is a fact for the jury to decide under proper instructions of the court. Rodriguez v. State, Tex.Cr.App., 363 S.W.2d 472; Fowler v. State, supra.

Art. 28.10 Vernon’s Ann.C.C.P. provides :

“Any matter of form in an indictment or information may be amended at any time before an announcement of ready for trial upon the merits by both parties, but not afterward. No matter of substance can be amended.”

The trial court erred in permitting the amendment of the indictment after it had been read to the jury selected to try the case.

The question of whether the names “Stillman” and “Spillman” are idem sonans is not before us. There is no contention that “Stillman,” the name appearing in the indictment prior to its amendment, and “Spearman” are idem sonans. Appellant’s claim of fatal variance is sustained. Marshall v. State, 157 Tex.Cr.R. 340, 248 S.W. 2d 931; Garlington v. State 141 Tex.Cr.R. 595, 150 S.W.2d 253; Newsom v. State, 142 Tex.Cr.R. 47, 151 S.W.2d 225.

The judgment is reversed and the cause remanded.


author: BELCHER, Judge.

text:
    Charles Ray OVERTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40607.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.

      Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Robert A. Huttash, Asst. Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The offense is burglary with the punishment enhanced by two prior felony convictions; the punishment, life.

In this case the trial court refused to allow the appellant to call his co-defendant, Jesse Gonzales, as a witness in his own behalf over the state’s objection that he was a co-principal who had been indicted of the same offense for which the appellant was on trial, and that his testimony was not admissible in evidence under the provisions of Art. 82 P.C. (since repealed). To such refusal the appellant timely and properly reserved his exception.

In Washington v. State, Tex.Cr.App., 400 S.W.2d 756, which was affirmed by this court, the trial court sustained the objection of the state to the calling of Fuller, a co-principal, who had been convicted of the murder for which Washington was on trial.

The United States Supreme Court reversed the judgment of this court affirming the Washington conviction (388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019) holding that he

“ * * * was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”

The holding of the Supreme Court of the United States in Washington is applicable and controls the disposition of this case and requires that the conviction be reversed.

In the event of another trial, we express the view that the venue should be changed.

The judgment is reversed and the cause is remanded.


text:
    Raul A. RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 40576.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 1, 1967.

      Rudy Esquivel, Tom Jospeh, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C., life.

Five grounds of error are presented, one of which relates to the sufficiency of the evidence.

The indictment alleged the burglary of a house belonging to Gilbert G. Herman with intent to commit theft.

Herman testified that he and his family had been Hying in the house for 8 years; that he did not know appellant prior to the day of trial and did not give him permission to break and enter the house or take anything therefrom; that when he returned from work on the date alleged in the indictment he learned that the house had been broken into and a television set and a table radio that were in the home when he left that morning were gone.

His wife, Minnie Herman, testified that she closed and left the house about 10 A.M. When she returned about 1:30 P.M. she noticed the screen to the kitchen window was on the ground in the carport. She found that the table radio and television set were missing and called the police. Mrs. Herman further testified that she did not know and had never seen appellant before the trial and had not given him or any other person consent to enter the house and take any property therefrom and that she had not seen the television or radio since the day they were missed.

A palm print lifted from the tile on the inside of the kitchen window (which Mrs. Herman testified was wiped every day) was compared by fingerprint expert S. O. Hartman with known palm prints of appellant and found to be identical.

The jury was charged on circumstantial evidence. Viewed in the light most favorable to the state, we find the evidence sufficient to sustain the jury’s verdict finding appellant guilty of burglary as charged in the indictment.

Following the return of such verdict, the defendant elected to have the jury assess his punishment and the allegations of the indictment alleging prior convictions were then read to the jury and evidence was introduced.

The prior conviction for burglary with intent to commit theft on June 8, 1960, alleged in the indictment, and the prior conviction for burglary with intent to commit theft on February 24, 1964, were proved by certified copies of the indictments and copies of the records of the Texas Department of Corrections which include certified copies of the judgment and sentence in each of said causes, and fingerprints and photographs and expert testimony to the effect that such fingerprints were identical with fingerprints of appellant taken by the expert, which were also introduced in evidence.

For the purpose of proving that the 1964 conviction was for an offense committed after the conviction on June 9, 1960, became final, and for further proof of the identity of appellant as the defendant previously convicted as charged in the indictment, the state called Officer Joseph Medellin who testified that he investigated the 1960 burglary and Police Officer E. P. Alfaro who testified that he was present at the trial on February 24, 1964, after having received the call on October 28, 1963, regarding burglary of the house of Jose Ramirez; and Ramirez testified that he came to court to see appellant “the same day he entered my home” and again when he testified at the trial “around 4 months later — February, I think it was — ’64.”

Appellant’s contentions that the court erred in refusing to grant his motion for instructed verdict based on the insufficiency of the evidence, and in submitting a charge which permitted the jury to consider assessing his punishment at confinement in the penitentiary for life are overruled.

Appellant complains that the court included in his definition of “force and breaking” the phrase “or by raising a window.”

The court’s definition in this regard followed the language of Art. 1394 of the Penal Code. This ground of error is overruled.

Another ground of error presented is that the court erred in permitting proof of the details of the prior offenses alleged for enhancement.

This complaint relates to the testimony of the witness Jose Ramirez, owner of the house alleged to have been burglarized on or about the 28th day of October, 1963, for which Raul A. Rodriguez was convicted on the 24th of February, 1964, and was properly admitted for the purpose of identifying appellant as the defendant in said cause and to sustain the allegation of the indictment that such conviction was for an offense committed after the burglary conviction in 1960 became final. We see no error.

The remaining ground upon which appellant seeks reversal is that the court erred in admitting the fingerprint card, State’s Exhibit No. 4, into evidence in that said evidence was obtained in violation of his constitutional rights against self-incrimination and right of counsel.

The fingerprints and palm prints on State’s Exhibit No. 4 were shown by the testimony of fingerprint expert S. O. Hartman to have been taken by him at the Bexar County Jail on the day it was offered in evidence at the trial.

The record reflects that fingerprints taken by the same expert on the day of appellant’s arrest had been excluded because the magistrate had not signed the warrant for his arrest.

Appellant was under indictment and in lawful custody when the prints offered in evidence were taken and the trial court did not err in admitting them. Platt v. State, Tex.Cr.App., 402 S.W.2d 898; Gage v. State, Tex.Cr.App., 387 S.W.2d 679; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365.

The judgment is affirmed.

ONION, J., not participating.


author: WOODLEY, Presiding Judge. DICE, Judge. MORRISON, Judge.

text:
    M. C. HEAD, Appellant, v. The STATE of Texas, Appellee.
    No. 40517.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Rehearing Denied Oct. 18, 1967.

      Charles Scarborough, Robert D. Batjer, Jr., Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is burglary with intent to commit theft; the punishment, enhanced by two prior convictions for felonies less than capital, life.

Trial was before a jury. The plea was not guilty.

After return of a verdict of guilty by the jury, appellant elected to have the trial judge assess the punishment, as authorized by Art. 37.07 Vernon’s Ann.C.C.P. After dismissing the jury, the judge held a hearing where evidence was introduced in support of the allegations as to prior convictions against appellant. Punishment was then assessed at life imprisonment.

Appellant’s contention that this procedure denied him the right to a fact-finding by a jury with regard to the prior convictions against him is overruled.

The prior convictions were proved at the hearing on punishment by the introduction of records of the Texas Department of Corrections, including certified copies of the judgment and sentence in each cause. Appellant was identified by an eyewitness as the same person who was convicted in Cause No. 6692 in the 49th Judicial District Court of Erath County in 1960. He was also identified as the same person who was convicted in Cause No. 8887-A in the 42nd Judicial District Court of Taylor County in 1958.

A fingerprint expert from the Texas Department of Public Safety testified that he took appellant’s fingerprints and compared them with the prints forming a part of the records of the Department of Corrections and that the two sets of prints were made by the same person.

The proof shows that the 1958 conviction was used to enhance the punishment in the 1960 conviction to 7 years for forgery, under Art. 62 P.C.

Appellant’s contention that it was error to use the first prior conviction to enhance the penalty in the present case, under Art. 63 P.C., the first prior conviction having been successfully used to enhance the punishment in the second prior conviction under Art. 62 P.C., is overruled. Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W. 2d 583; Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834. We are not disposed to grant appellant’s earnest plea that these authorities be overruled.

Appellant’s contention that he was compelled to give evidence against himself when the state was permitted to introduce his fingerprints taken on the morning of his trial, in the absence of his lawyer, is without merit. Platt v. State, Tex.Cr.App., 402 S.W.2d 898; Gage v. State, Tex.Cr.App., 387 S.W.2d 679; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365.

Appellant challenges the sufficiency of the evidence offered by the state to prove the allegation that the conviction on November 7, 1960, in Erath County, was for an offense committed after the conviction in 1958 became final.

The indictment in Cause No. 6692 from Erath County was introduced into evidence. It set out the check which was alleged to have been forged, which check was dated May 14, 1960, the date on or about which the offense was alleged to have been committed. This allegation was sufficient to show that the 1960 conviction was for an offense committed subsequent to the 1958 conviction becoming final. Ex parte Ferrell, Tex.Cr.App., 406 S.W.2d 440.

Also, it was alleged and adjudicated in the 1960 conviction that the 1958 conviction in Taylor County was a final conviction prior to the commission of the offense which resulted in the 1960 conviction.

Appellant’s final contention is that, since the evidence shows the date of the judgment in the prior conviction in Erath County to be October 19, 1960, and the indictment alleged that the conviction was on November 7, 1960, this constitutes a fatal variance between the allegation in the indictment and the proof. The indictment correctly alleged that appellant was previously convicted on November 7, 1960, the date of the sentence and the date of the final conviction in the previous cause. Goodale v. State, 146 Tex.Cr.R. 568, 177 S.W.2d 211; Covarrubias v. State, 169 Tex.Cr.R. 288, 334 S.W.2d 187.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

Appellant insists that our opinion delivered on original submission is contrary to the rule, stated in Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179, and subsequently followed by this Court, that prior convictions can be used only once to enhance punishment as an habitual criminal, under Art. 63 of the Penal Code.

In the Gooden case, the prior convictions were twice used to enhance punishment, under Art. 63, supra, and it was held that this could not be done. We adhere to such holding.

In the instant case, the two prior convictions have not been used more than once to enhance appellant’s punishment under Art. 63, supra.

The fact that the 1958 conviction was used to enhance his punishment as a second offender under Art. 62, V.A.P.C., does not — under this Court’s holdings in Mayo v. State, 166 Tex.Cr.R. 470, 314 S. W.2d 834, and Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583, cited in our original opinion- — preclude its subsequent use in fixing his status herein as a third offender (habitual criminal), under Art. 63, supra. The opinion in Ex parte Calloway, supra, which appellant attacks in his brief, though prepared by a Commissioner, was unanimously approved by the Court, and, under the provisions of Art. 1811c, V. C.S., has the same weight and legal effect as if originally prepared and handed down by said court. We adhere to these holdings.

The motion for rehearing is overruled.

CONCURRING OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

I concur with the opinion on motion for rehearing, but would add the following.

Any other holding than the one we have made would render Article 63, supra, inoperative except in those rare cases where a prosecutor had failed to employ the enhancement provisions of the Code. That is, it would be necessary for an accused to have been convicted of two separate felonies at different times, and the first not used to enhance the second. Only in such a case could Article 63 be given application upon a third conviction. Any other holding would effectively destroy the purpose of the enhancement provisions of the Code.


author: DICE, Judge.

text:
    Jerry Wayne TRUSSELL, alias Sammy Long, Appellant, v. The STATE of Texas, Appellee.
    No. 40641.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Joe K. McGill, Seminole, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for the fraudulent removal of mortgaged property; the punishment, three years.

The record on appeal has not been prepared and approved as required by Art. 40.09, Vernon’s Ann.C.C.P.

The endorsement of the presiding judge on the statements of fact of the evidence, adduced upon the main trial and on the motion for new trial and in arrest of judgment, that the same were found to be true and correct and ordered filed in the cause does not comply with the requirements of Art. 40.09-7 that the entire record be approved by the court.

The time for filing the defendant’s brief does not begin to run until the approval of' the record by the court. Art. 40.09-9, V.A.C.C.P.

The disposition of the appeal will be suspended to await the approval of the entire record and further proceedings which may he had in the trial court under Art. 40.09, supra, after such approval, as though the record had not been filed in this court. Stoker v. State, Tex.Cr.App., 415 S.W.2d 923.

The appeal is abated.


text:
    O. D. FLEMING, Appellant, v. The STATE of Texas, Appellee.
    No. 40562.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1967.
    C. Benton Musslewhite, Lufkin, for appellant.
    James I. Perkins, County Atty., Rusk, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The conviction is for Sale of Intoxicating Liquor in a Dry Area; the punishment, three (3) months in jail and a fine of $200.-00.

Sentence was pronounced and notice of appeal was given October 31,1966.

The record on appeal has not been prepared and approved as required by Article 40.09, Vernon’s Ann.C.C.P.

It appears there was no court reporter, and the trial judge prepared the statement of facts after the parties were unable to agree upon the same, but this fact, even coupled with the court’s refusal to grant a new trial and allow the defendant to withdraw his notice of appeal, does not comply with the requirements of Article 40.09(7), V.A.C.C.P., that the “entire record” be approved by the court. See Johnson v. State, Tex.Cr.App., 420 S.W.2d 728.

The time for filing the defendant’s brief, in which he must assign his grounds of error, does not begin to run until the approval of the record by the court. Article 40.09, Sec. 9, V.A.C.C.P.

The disposition of the appeal will be suspended to await the approval of the entire record and further proceedings which may be had in the trial court under Article 40.09, supra, after such approval as though the record had not been filed in this Court. Stoker v. State, Tex.Cr.App., 415 S.W.2d 923.

The appeal is abated.


text:
    Gilbert CARRANCO, Appellant, v. The STATE of Texas, Appellee.
    No. 40667.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Victor R. Blaine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and Ray Montgomery, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is the possession of heroin; the punishment, 15 years.

There are three grounds of error raised by this appeal. The first is the failure of the court to grant appellant’s motion in limine by which he sought to exclude the proof as to appellant’s possession of the contraband. The second is the admission of such evidence at the trial, and the third is the action of the trial court in sustaining the State’s objection to certain questions propounded to. the arresting officers concerning the identity of the informer.

All three of these grounds would appear to have been discussed by the Supreme Court of the United States in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; and by this Court in Clifton v. State, Tex.Cr.App., 399 S.W.2d 353; Gonzales v. State, Tex.Cr.App., 402 S.W.2d 763; Platt v. State, Tex.Cr.App., 402 S.W. 2d 898; and Bosley v. State, Tex.Cr.App., 414 S.W.2d 468.

We will now discuss the combined testimony of the arresting officers. The informer was known to at least two of the arresting officers and at noon of the day of the arrest he had come to the narcotic offices and informed Officer Garcia that he would meet him that night at 7:30 on the 7200 block of Jensen Drive and would then have some information about appellant and the possession of narcotics. The informer had given Garcia information for more than two years about others engaged in the narcotic traffic, and in each instance the information had been proven to be accurate. At 7:30 Garcia and others met the informant at the appointed place and he then told them that appellant would, in a matter of minutes, be leaving the 3800 block of Saunders in a white Pontiac, license number NNW-33, and would have in his possession a quantity of marihuana and heroin. The officers then went to the 3800 block of Saunders where other officers met them and where they pulled over in front of appellant, who was driving the automobile described, causing him to bring the same to a halt. As they approached the same, two officers opened both front doors and one was able to take from appellant’s hand a roll-your-own cigarette which he was attempting to throw on the floorboard of his automobile. The officers had identified themselves and as appellant stepped out of his automobile one of them took a cigarette package from his shirt pocket which contained ten smaller packages of white powder. It was shown by the testimony of the police chemist that the cigarette contained marihuana and that the ten smaller packages contained enough heroin to make 225 capsules.

Appellant’s first grounds of error are overruled. As to his third ground, we point out that the careful trial court permitted the following questions and answers concerning credibility of the informer:

“Q. Was this individual an officer of the law ?
A. No, sir.
Q. Is he a narcotic addict?
A. No, sir, he is not.
Q. Has he been a narcotic addict in the past?
A. Not to my knowledge.
Q. Has he ever been convicted of any charge in connection with narcotics ?
A. No sir.
Q. Has he ever been convicted in this State ?
A. No sir, he has never been convicted in this State.”

The Court sustained the State’s objections to questions as to his identity such as these:

“Q. What is his name?
Q. Do you know where he lives?
Q. Is he married ?
Q. Was he white, colored or Spanish ?”

Elsewhere in the examination the witness answered that the informer was a Latin American.

We quote' from McCray v. Illinois, supra, as follows:

“The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer’s privilege.
Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury.”

Recently in Bosley v. State, supra, we had occasion to thoroughly discuss the holdings of the Supreme Court of the United States, including McCray v. Illinois, supra, and our holding there supports our holding here that the Court did not err in sustaining the State’s objections to the questions asked.

Finding no reversible error, the judgment is affirmed.


text:
    William Nelson FARMER, Appellant, v. The STATE of Texas, Appellee.
    No. 40563.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1967.
    Tom Robérts, Carthage, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The conviction is for the felony offense of driving while intoxicated (Art. 802b Vernon’s Ann.P.C.); the punishment, 30 days in jail and a fine of $200.

The sole ground of error is: “The trial court erred in denying the defendant’s motion for a continuance of ten (10) days in which to prepare for trial and the denial of this state and constitutional right colored the whole trial of this case denying the defendant his right to a fair trial in violation of Article 26.04(b) of the Code of Criminal Procedure and the Sixth (6th) Amendment to the Constitution of the United States.”

The record reflects that appellant retained Hon. Davis Bailey as his attorney but was unable to pay him a fee. Thereafter, the court allowed Mr. Bailey to withdraw from the case and, on September 26, 1966, appointed Hon. Tom Roberts to represent appellant.

On October 3, 1966, the case being called for trial, appellant and his counsel Tom Roberts filed a verified motion for continuance directing attention to Art. 26.04(b) Vernon’s Ann.C.C.P. and pointing out that the ten day period of time to which appointed counsel is entitled to prepare for trial had not been waived and was specifically requested and was vital to the fair trial of the case.

Art. 26.04 V.A.C.C.P. reads:

“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.
“(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

The trial court having found that appellant was too poor to employ counsel, and having appointed counsel Roberts to defend him, erred in directing the defendant to proceed to trial and denying his court appointed counsel’s request that he be allowed ten days to prepare for trial. Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775; Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666 (July 19, 1967); Bennett v. State, Tex.Cr.App., 382 S.W.2d 930.

The judgment is reversed and the cause remanded.


author: O’QUINN, Justice.

text:
    James S. HOGAN, as next friend for Ernest Lamar Murphy, Appellant, v. A. M. TURLAND, J. P. Precinct Number 4, Bell County, Texas, Appellee.
    No. 11531.
    Court of Civil Appeals of Texas. Austin.
    Sept. 20, 1967.
    Rehearing Denied Oct. 11, 1967.

      Mitchell, Gilbert & McLean, Arthur Mitchell, Austin, for appellant.
    Neil E. Clinkenbeard, Killeen, for appel-lee.
   O’QUINN, Justice.

Appellant seeks to invoke jurisdiction of this Court to determine whether the County Court of Bell County erred in refusing a writ of mandamus to compel a justice of the peace to accept notice of appeal and an appeal bond in a misdemeanor conviction for disturbing the peace.

Ernest Lamar Murphy, an eighteen-year-old boy, was arrested by city police in Kil-leen, without a warrant and without complaint, while playing a pin ball machine in the Yellow Cab Cafe. Later that day, in a proceeding before A. M. Turland, Justice of the Peace of Precinct No. 4 in Bell County, the boy was fined $15 and was afterwards released from jail when a friend paid the amount of the fine by leaving the money with a police officer.

After the boy’s mother and step-father learned of the incident, the mother sought to appeal from the conviction by timely tendering notice of appeal and a bond to the justice of the peace, who refused to accept the papers. James S. Hogan, the boy’s stepfather, acting as next friend, applied to the County Court for mandamus to compel the justice of the peace to receive the appeal documents and to forward to County Court the record necessary to effect an appeal. William C. Black, County Judge, denied the application for mandamus.

However evident the need to direct that justice be done, appellant is not in a forum having power to rule on his rights, for this Court is without jurisdiction to hear the appeal. Every question presented by the record pertains to criminal law and procedure. The jurisdiction of Courts of Civil Appeals in this State is limited to civil cases. 15 Tex.Jur.2d, Courts, sec. 19, p. 437. The Constitution confers upon Courts of Civil Appeals “appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction * * * ” (Emphasis added.) Article V, sec. 6, Constitution of Texas, Vernon’s Ann.St.

Appellant contends that since mandamus is purely a civil action, available to compel action on the part of persons charged with positive duties in official positions, the action initiated in county court and now appealed to this Court was and is a civil proceeding. (Citing Lowe and Archer, Texas Practice, sec. 471; 37 Tex.Jur.2d, Mandamus, sec. 2).

The real nature of the proceeding is not changed by calling it a civil action. Appellant, in concluding his brief before this Court, describes the remedy here sought in this fashion:

“Appellant’s plea of guilty and payment of fine through his friend did not preclude review of the proceedings had in Justice of the Peace court; and this Court should order Appellee to allow Appellant to file his notice of appeal and bond so that Appellant may have the criminal conviction tested under the strong light of due process. It is hoped that the County Judge (who tried this case and who will have to try any appeal allowed Appellant from his conviction by this Court) will have the time to allow a proper trial on appeal and will be given a blue print by this Honorable Court as to the requirements of due process in a trial de novo in a criminal case to the end that all of Appellant’s time, work, and expense spent in seeking to right an injustice done him will be of avail.” (Emphasis added.)

Appellant’s prayer makes clear that any judgment this Court might enter would of necessity involve criminal law and procedure and not the law of a civil action:

“ * * * Appellant prays of this Court that the judgment of the County Court denying to him his writ of mandamus be reversed in all things, and that writ issue requiring the Appellee to accept Appel-lanfs notice of appeal, appeal bond and all other documents necessary to effectuate an appeal of the criminal conviction so unjustifiably hung about his neck, and that Appellant have all other relief to which he is entitled. * * * ” (Emphasis added.)

In urging this Court to assume jurisdiction of his appeal, appellant relies upon Castledine v. Mitchell, Tex.Civ.App., Fort Worth, 336 S.W.2d 287 (no writ), and seeks to distinguish Gibbs v. Melton, Tex.Civ.App., Dallas, 354 S.W.2d 426 (no writ), in which the Dallas Court of Civil Appeals in 1962 held it was without jurisdiction because the appeal was not in a civil action.

In deciding Castledine v. Mitchell, supra, in 1960 the Fort Worth Court of Civil Appeals followed an earlier decision of that Court in Berume v. Hughes, Tex.Civ.App., Fort Worth, 275 S.W. 268 (no writ). Both cases were appeals from a mandamus action filed in county court following conviction for a misdemeanor in an inferior court. In the Castledine case, the Court of Civil Appeals noted that the court “initially entertained grave doubts” as to jurisdiction of the appeal, but on reviewing the holding in Berume v. Hughes and considering it analogous, decided it was proper to assume jurisdiction of the appeal. 336 S.W.2d 287, 289, col. 1.

In Berume v. Hughes, supra, the court relied upon two early Supreme Court cases in holding that the writ of mandamus, a civil remedy, is available in a criminal proceeding. In the first of these cases, Commissioner of the General Land Office v. Smith, 5 Tex. 471, the Supreme Court stated, “In consideration of this case two questions are presented: 1st. Will the writ of mandamus lie to compel the Commissioner of the General Land Office to issue a patent in any case? If so, 2d. Is a case presented by this record for a final judgment awarding it ?” In the other case, Arberry v. Beavers et al., 6 Tex. 457, it was made clear, “This is a proceeding by mandamus to compel the Appellant Arberry, who was chief justice of the county of Cass, to receive and count certain returns of voters given in an election held for the purpose of electing a seat of justice of Cass county.” Neither case relied upon was a criminal proceeding. Moreau v. Bond, 114 Tex. 468, 271 S.W. 379, and Ewing v. Cohen, 63 Tex. 482, also cited in Berume v. Hughes, were appeals to the Supreme Court from district court and are not helpful in deciding jurisdiction of a court of civil appeals.

The Texarkana Court of Civil Appeals in 1922 took jurisdiction of an appeal from a county court judgment dismissing application for mandamus to allow an appeal from a vagrancy conviction in justice court. Atkins v. Woodward, Tex.Civ.App., Texarkana, 241 S.W. 1117 (no writ). It does not appear that the question of jurisdiction was raised or considered by the Court of Civil Appeals.

In 1928 the Waco Court of Civil Appeals, in McIntosh v. Watts, Tex.Civ.App., Waco, 5 S.W.2d 1003 (no writ), accepted jurisdiction of an appeal from a mandamus action in county court seeking to compel the judge of a corporation court to enter a judgment of conviction against an accused on his plea of guilty to simple assault. While the Court of Civil Appeals questioned jurisdiction of the county court, due to the state of the record, the court apparently entertained no doubt as to its own jurisdiction of the appeal.

In State v. McKenna, Tex.Civ.App., Galveston, 253 S.W.2d 285 (writ ref., n. r. e.), the Galveston Court of Civil Appeals decided an appeal from a county court refusing mandamus to require a justice of the peace to prepare and transmit transcript of a proceeding brought by the State to seize “106 electric race horse machines.” Suits of this character are civil actions in rem having a basis in criminal statutes. Mosse v. State, Tex.Civ.App., Dallas, 332 S.W.2d 383 (no writ).

The Eastland Court of Civil Appeals in 1930, in holding that a county court may enforce its jurisdiction by mandamus to the justice court, cited among other authorities the case of Berume v. Hughes, supra. Harbert v. Owen, Tex.Civ.App., Eastland, 26 S.W.2d 670 (no writ). But the Harbert case itself was a civil action, in which one party obtained a money judgment against another, and did not involve criminal law or procedure.

The question before the Dallas Court of Civil Appeals in Gibbs v. Melton, supra, was whether to assume jurisdiction of an appeal from district court granting a writ of mandamus to require a justice of the peace to transfer a misdemeanor complaint from his precinct to the justice court of another precinct in the same county. Before the Court of Civil Appeals the State contended that Article 60a, Vernon’s Ann. Code of Crim.Proc., which provided that no person could be tried for a misdemeanor in justice court of a precinct except in the precinct where the offense was committed, was void because contrary to Article V, sec. 19, of the Constitution of Texas. The Dallas Court decided the case was not a civil action within the meaning of the Constitution and statutes conferring jurisdiction on Courts of Civil Appeals and dismissed the appeal. 354 S.W.2d 426, 429, col. 1.

As the Court stated in Gibbs v. Melton, supra, “the jurisdiction of the Courts of Civil Appeals is controlled by the Constitution and Statutory provisions and is not unlimited or absolute.” 354 S.W.2d 426, 428, col. 1; Myers v. Smitherman, Tex.Civ.App., San Antonio, 279 S.W.2d 173 (no writ); Harbison v. McMurray, 138 Tex. 192, 158 S.W.2d 284. Cases growing out of penal statutes, but based upon private property rights, are not in point to support the contention that a Court of Civil Appeals has jurisdiction of suits other than civil actions. Gibbs v. Melton, supra, and cases cited, 354 S.W.2d 426, 428-429, cols. 1, 2.

We have concluded that we are in agreement with the reasoning and holding of the Dallas Court of Civil Appeals in Gibbs v. Melton, supra, resulting in refusal to assume jurisdiction of a cause clearly not a civil case. We believe the case before this Court is controlled by the same principles and that the appeal should be dismissed.

The appeal is dismissed for want of jurisdiction.

Appeal dismissed.


author: NYE, Justice.

text:
    SUNSET BRICK & TILE, INC., et al., Appellants, v. Myrtle C. BUSHONG, a widow, et al., Appellees.
    No. 335.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 28, 1967.

      Lipscomb Norvell, Jr., of Benckenstein & Norvell, Beaumont, for appellants.
    Mike Willatt, of Carroll, Matthews & Willatt, Houston, for appellees.
   OPINION

NYE, Justice.

This is an appeal from an order of the trial court which overruled the plea of privilege of the appellants Sunset Brick & Tile, Inc. and Daniel V. Leazer. The suit was instituted by Myrtle C. Bushong, a widow, individually and as next friend o'f her minor daughter Linda Bushong to recover damages for the death of appellees’ husband and father alleged to have resulted from an automobile-truck collision near Palacios in Matagorda County, Texas. The appellees, by their controverting affidavits, sought to maintain venue in Matagorda County, Texas by virtue of article 1995, subsection 9a against both appellants and section 23 of article 1995, against corporate appellant Sunset Brick & Tile, Inc. The pleas- of privilege were heard by the trial court sitting without a jury. No findings of fact or conclusions of law were requested or filed.

The test on appeal from an order overruling- a plea of privilege as to the evidence is the same as in any other civil case. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (Tex.Comm’n App.1935). It has been universally held by our appellate courts that in order to maintain venue under subsection 9a of article 1995, the plaintiff must allege and prove facts that an act or omission of negligence of the defendant or his servant, agent or representative, acting within the scope of the employment proximately caused plaintiffs’ injuries and that such negligence occurred in the county where the suit was filed. It is also a fundamental rule that when a case is tried without a jury and where no findings of fact or conclusions of law are requested of or filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory and every issue sufficiently raised by the evidence must be resolved in support of the judgment. Henderson v. Willmon, 407 S.W.2d 24 (Tex.Civ.App.—Texarkana, 1966, wr. dism’d); 3B Tex.Jur. § 873, p. 278.

Appellants in four points contend that the court erred in overruling their plea of privilege to be sued in Gonzales County, Texas, the county of their residence and/or residence of their registered agent because there was no evidence that the defendants were guilty of negligence which proximately caused appellees’ damage.

Our duty in this connection is to examine the record in the light of appellants’ points of error and determine if the evidence is legally sufficient to support the trial court’s judgment. If discarding all adverse evidence and giving credit to all evidence that is favorable to the plaintiffs and indulging every legitimate conclusion favorable to the plaintiffs which might have been drawn from the facts proved, a trier of the facts might have found in their favor, then there is sufficient evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953). See this court’s opinion in Frick v. Duge, 413 S.W.2d 750 (Tex.Civ.App.—Corpus Christi 1967, n. w. h.) and Sunset Brick & Tile, Inc. v. Miles, 417 S.W.2d 93 (Tex.Civ.App. —Corpus Christi 1967).

The record before us which includes the statement of facts shows that the collision in question occurred on the morning of March 17, 1965 at approximately 5:30 in the morning. Appellee Myrtle Bushong’s husband was driving his automobile on his way to work in the oil fields. Four other men were riding as passengers in his car. It was dark and there was a misting rain. The testimony was that Bushong’s car was estimated to be traveling between 45 and 53 miles per hour shortly before the collision. The truck, loaded with bricks was travelling in the same direction as the Bushong car and was estimated to be going between 10 and 30 miles per hour. The car collided with the back of the loaded brick truck some one quarter mile past the outskirts of Palacios. The appellees alleged negligence generally contending principally that the trailer on the brick truck had no lights on it at the time of the collision and that the reflectors were dirty and unoperative.

Further testimony from one of the passengers Vincent, who was riding in the right rear seat of Bushong’s car was, that he was watching the road ahead and that the truck was about 30 feet in front of him when he first saw it and he did not see any lights on the back or the side of the trailer. Another witness, Carl Wessels, who was riding in the right front passenger seat at the time of the collision, testified to the effect that he was looking ahead and that he estimated that the truck was about forty feet away when he first saw it; that he saw the back end of the truck immediately prior to the collision but saw no lights on it.

The defendant truck driver Daniel V. Leazer, was an employee of corporate defendant Sunset Brick & Tile, Inc., and was working in the scope and course of his employment at the time of the collision. He testified that he never did see Bushong’s vehicle prior to the collision and he could not say whether his trailer lights were on at the time of the collision or not. He admitted that he had been having trouble with the trailer lights that morning, testifying that the wire had worn through, midway along the trailer, where it rested on the crosspiece, and that he had had to fix this and replace the fuse before leaving the brickyard. Immediately after the collision the defendant truck driver and highway patrolman checked over the trailer and found that the fuse which the driver had replaced that morning was again blown out. The defendant driver gave a statement in which he admitted the possibility of his trailer lights being out at the time of the collision. There was other testimony by the truck driver to the effect that he had not checked the reflectors on the trailer that morning and he admitted that it was hard to keep them clean in wet weather.

The record shows that the damages suffered by the appellees were offered into evidence as requests for admissions and the order of the court deeming plaintiffs’ requests for admissions to be admitted. This was to the effect that Alfred L. Bush-ong was the driver of the automobile involved in the collision; that he was killed as a result of the collision; that at the time of his death he was married to ap-pellee Myrtle C. Bushong and that appellee Linda Bushong represented herein by her mother as next friend, is the surviving minor child of the marriage of Myrtle C. Bushong and Alfred L. Bushong, the deceased.

We hold that there is legally sufficient evidence that a cause of action arose in Matagorda County so as to support the judgment of the trial court and to maintain venue in that County, not only under subsection 9a of article 1995 but also as to the corporate appellant under section 23 of article 1995. Appellants’ points are overruled.

Judgment of the trial court is affirmed.