*1 BARBEE, Appellant, L. Robert Texas, Appellee. The STATE of Appeal. Attorney of Record No No. 41225. Austin, Atty., Appeals Douglas, Leon B. State’s of Texas. Criminal for the State. May 8, 1968. July 10, Rehearing Denied
ONION, Judge. Rehearing Denied Oct. Second This is an entered from order Tar-
in Criminal District Court No. custody County remanding appellant
rant Arizona. extradition to the State of Application
At the hearing Corpus,
Writ of Habeas the State intro-
duced into evidence the Executive Warrant Texas authorizing Governor of
arrest return
State charge of Arizona answer a (A.R.S.
Grand Theft Embezzlement §
13-682). Further, the State introduced the
Requisition Governor, of the Arizona
Application Requisition, the affidavit complaint magistrate, sworn to before a Arrest,
Warrant supporting and other
papers. clearly These instruments reflect charged complaint felony warrant with the offense of
Grand Theft ($1,020.00) Embezzlement
in Arizona. offered nо evidence and appellate brief has been filed. regular face,
If its bar,
case at the introduction of the Gov
ernor’s Warrant alone prima makes out
facie authorizing case Ex extradition.
parte Kronhaus, Tex.Cr.App., 410 S.W.2d
442; parte Juarez, Ex Tex.Cr.App., 410 S.
W.2d 444. having failed over prima
come the facie case established
the State with the introduction the Gov
ernor’s supported by Warrant and other papers,
extradition judgment af
firmed. *2 pronounced.
tence was In the absence of contrary, showing affirmative Hollingsworth state, upon by the relied presumed will that notice of given after Accordingly, sentence. *3 dismiss motion to is overruled. appellate that the suggestеd It is further not con- appellant should by brief filed pur- filed timely it because was not sidered court’s re- Art. 40.09-9 suant to unassigned error be limited should view 40.09-13, C.C.P. under en- that the court reflects The record extending the time for an order tered including brief filing appellant’s “to February 4, date, 4, February 1968.” The filed was on Sunday the brief was day the last February 5. fact Sunday period fell did on of the extension on the the brief not authorize under would succeeding Monday, as Procedure, in 4, Texas Civil Rule Rules of Tex.Cr.R. a civil case. Bichon v. State, 166 812; 98, 230 Seales S.W.2d Tex.Cr.R. 311 S.W.2d unassigned error We will consider 40.09, supra, the fol- 13 of Art. Phelps, Snell, Kilgarlin & W. W. reviewed lowing, which Houston, Kilgarlin, appellant. for justice: interest of Bass, Ogden Atty., Dist. Wallace N. appellant com- In of error four Shaw, Atty., Angleton, Asst. Dist. refusing plains court’s action Douglas, Austin, B. Atty., Leon State’s a mistrial order grant or a continuance the State. repre- attorney might he secure an trial, him, when, in- during sent due and emotiоnal physical sisted that DICE, Judge. incapable presenting he was his strain own defense cause. The conviction is under Art. Ver- Ann.P.C., non’s barra- offense complaint The record reflects that try; punishment, jail fifteen appel- and information were filed and a fine of $300. January on was lant represented the cause coun- originally 'The state moves appeal to dismiss on his sel who filed certain motions on be- ground notice of was not May The case trial half. on set for sentence, given pronouncement 17, 1967, and on such date dis- required 44.08(c) of the Code of missed his attorney record. The casе Criminal Procedure. July trial court reset for allowing appellant the purpose
The record reflects that 17 for notice of .appeal given to obtain counsel the same sen- his own choice. On Nor, the same pre-trial hearing, felony. charged with a June appointment reason, counsel was he entitled to court cautioned to obtain C.C.P., in a with under Art. 30 discussed and on June counsel. McClendon the fact that he had not secured misdemeanor case. the court 778. Under At advised such time circumstances, did anywhere pauper” near a the court that he was “not facts and а con- qualified grant a mistrial or refusing court- err in therefore attorney appointed but that he been un- had tinuance.
able hire counsel his choice. eighth In and ninth erred in proceeded the case insists that the court July
On grant himself. On an in- appellant representing refusing motion for receipt guilty at the con- Thursday, July structed verdict of not Holt, evidence and also of a from Dr. C. recessed clusion the state’s note Wm. Monday, July refusing grant a new trial following the case until the erred in *4 evidence Monday the court because “there was insufficient 24. On recessed the jury.” day, support to the verdict follоwing July case until the On 25, convened, July appellant when court While this court not ordi does then for made motion mistrial or for narily question sufficiency consider the a continuance enable him to obtain coun- support of the evidence a conviction sel, ground physical- on the that he was not unassigned 13 of ly able to continue as his counsel. 40.09, supra, so, ap we will do view of hearing, At the Dr. that Holt testified pellant’s that, assuming claim he did “will 20, Thursday, he saw July and fully instigate, encourage” excite and very tired—probably concluded he was bring against O’Neal to a lawsuit Juanita physical a result of and emotional strain— Company Dow Chemical there evi nowas and wrote a note to that effect. dence profit that such was done for his purpose or for distressing harass Dr. Zatorski that he admit- testified J. Company. Chemical Dow hospital ted in Houston on Saturday, July complaints in- At the prosecuting wit digestion pain X-rays 'and the shoulder. ness Marie O’Neal testified that of the chest were but that normal about a week her husband’s death neck showed some arthritis. The doctor explosion Company Dow Chemical stated he was aware of home, uninvited, came her history stomach ulcers but was unable to and talked to her. In the conversation say physical that his and mental condition appellant, talking while her about impaired would continuing as his own death, husband’s said that: expressed the counsel in the case. He also “ * * * lawyer. a I contact should be in opinion appellant did not need you have telling He was me that when ulcer would hospital and that his specialist surgery you and this hospital. up heal better in a necessarily Houston, they specialists, are firm in law hearing, the such At the conclusion therefore, them. I should contact appellant’s renewed court overruled investigator me he was an He told alternative, or, mistrial, this investigate him I should allow continuance. my they responsible because were * * husband’s death perceive no error. ap- ap She testified that in such conversation indigent and entitled to pellant gave her a card decision business under the pointment оf telephone wrote on the card a number 83 S. Wainwright, 372 U.S. Gideon v. number the law firm and also another he been even had L.Ed.2d Ct. adopted where he be reached. She stated Legislature (Acts could the 60th p. after several left hours Ch. 5429b-2 V.A.C. thirty S.) applicable amendment, about minutes returned and “each “ peal, any pro- revision and reenactment” of ** * talking about started vision of the of Criminal Code Procedure how I this law firm should hire file a subsequent enacted any Leg- 60th or suit Dow.” islature. conversation, appellant In the second Among provisions told the witness of said Code “ amended, by the 60th revised or reеnacted * * * that I hire him in- should 6(a), are 7 and * Sections * * vestigate explosion this Art. 40.09 which record on relates anything we were entitled to that we appeal.1 pay get could and that Dow this.” provisions Other 1965 Code of following morning containing Criminal Procedure performed called the witness and hire for time for were some asked act to amended, explosion,” him “investigate this revised reenacted the 60th Legislature. asked her if she had decided “to use These include Art. 11.07 and firm law in Houston.” Art. 18.30 V.A.C.C.P. support The evidence is sufficient to will Provisions the 1965 Code which
conviction,
Quarles
under the cases
*5
in the
no doubt be amended or revised
State,
Tex.Cr.App., 398
and
S.W.2d
and 44.-
near future include Articles 44.13
Quarles
(Tex.
Bar
Texas
Civ.
State
of
Corpo-
appeals
16
the
which relate
from
App., 1958),
ON APPELLANT’S MOTION FOR
Saturday,
holiday,
Sunday,
legal
REHEARING
period
the
is extended to include
day
the next
which is not a Sat-
WOODLEY, Presiding Judge.
urday,
holiday.”
Sunday,
legal
date, Septem
Since its effective
ef-
The rule is
and to the same
similar
1, 1967,
ber
the Code
Act
fect
Rule
Construction
Texas Rules of Civil Pro-
exception
objections
6(a)
senting
writing
relates
bills
and
in
to the trial
provisions
regarding
judge
contains
for time allowed for
record.
the
filing, approving,
disap
qualifying or
time
Sec. 12 contains a
limit
proving
filing bystanders
and for
bills.
court to decide from the brief whether
period
pre-
grant
Sec. 7 contains a
a
trial.
time
new
appellant com-
сontrary
In three
cedure as amended
refusal
continue
plains of
court’s
in Bichon
this court
rule followed
Ford, ap-
witness, Kenneth
case until
State, 155 Tex.Cr.R.
230 S.W.2d
excusing
the wit-
testify and
peared to
Tex.Cr.R.
and Seales v.
sub-
had been
Bing,
ness Robert
who
by appellant.
poenaed
4, Texas
Rule
Art. 5429b-2 V.A.C.S. and
Procedure,
a more
furnish
Civil
the motion
Rules
reflects that
The record
period
computing
rule
reasonable
absence
because of the
to continue
case
appeal in
perfecting an
taking or
time for
orally made to
of the witness Ford
case,
uniformity in civil
a criminal
day
the ninth
procеdure is desirable.
criminal
by appellant had
called
after six witnesses
motion, appellant con
testified.
In the
confined
Lawyers
who
heretofore
with a
ceded that Ford had not been served
are
be-
practice
their
civil matters
was,
subpoena. The motion—which
in crim-
serve as cоunsel
called
fact,
subsequent
comply
motion—did not
why
cases;
inal
and there
no reason
29.06,
29.03,
requirements
of Arts.
lawyers should not
judges, court clerks and
29.07,
29.08,
were
facts
C.C.P. Nor
enjoy
five
week to
the benefits of a
require a
in the
sufficient to
stated
extent,
duties
the same
whether their
re-
begun,
trial had
continuanсe after
pro-
late
a criminal case or
a civil
Not
C.C.P.
ceeding.
subpoena,
having been served with
subject
attach
witness Ford was not
5429b-2, supra,
While it is true that Art.
ment,
urged by appellant.
24.22
tried,
was not
effect when this case
C.C.P.
9 Art. 40.09 V.A.C.C.P.
Section of
been
lating
briefs
has
perceived
error is
No
amended,
authority
has
to re-
court
permit
wife,
refusal to
call his
prior holdings
light
examine its
*6
who had been in the courtroom and heard
statute and
the rule where-
the
abandon
to
testimony,
testify
support
to
in
bill
holiday may
by
Sunday
legal
a terminal
exception
materiality
as to the
of Ford’s
computing
time al-
not be excluded in
the
testimony.
by
lowed
the 1965
Criminal Pro-
Code of
done, though ter-
cedure for an act
be
to
perceive any
by
Nor do we
error
Sundays
minal
as
Saturdays as well
the court’s
excusing
action in
witness
the
legal holidays
com-
will be excluded in
Bing, after he was called out of order—be
puting
if
amend-
time аllowed the statute is
cause he
hospital—and
had to
to a
go
was
ed or reenacted.
appellant
tendered to
direct examina
tion,
which was declined. Bowers v.
rule
in
v.
followed
Bichon
The
155 Tex.Cr.R.
should have motion, 28.01, supra, setting the certain Art. Art. under the hearing, pre-trial designated motions for 31.01 C.C.P. the granting in the court’s action the and find examined recоrd We have does such notice in the case without instant change failure venue. no error conviction. call not for a reversal of refusing appel- in err Nor did court deprive did Such the court action quash panel. jury lant’s oral motion to appellant introduce at right of his Cf. legal competent trial evidence. Sonderup State, Tex.Cr.App., 418 S.W. appellant’s overrule 2d 807. No. contends ground of his mo overruling in the court erred perceive We also no error because con new trial the court’s tion for tes- refusal to elicit permit prejudice duct him was such toward O’Neal, timony complainant, Mrs. from the a fair deny him and him jury guard- before the with reference jury, An does trial. examination of the record ianship de- children of her of the minor but re sustain contention dealings ceased husband her judge trial fair and veals that was another the death her attorney after apрellant, layman lenient with the who husband. representing himself. testimony given The exclusion of and thirteenth In his twelfth absence, jury’s the complainant, in the error, complains of the court’s exception on a bill effect that to the be sustaining in certain state’s motions action emotionally upset causе she she could excluding jury limine and from have been mistaken a second visit about portions testimony complain- purportedly made home ant, Marie O’Neal. presents error, was later permitted question jury before the record reflects that six motions with reference the dates she testified he requesting limine the state were filed came to her home and to elicit from her instruct the the court not to testimony pos the effect during mention reference make trial sible she was in a visit after a error about jury’s presence matters certain certain date. establishing relevancy, without first *7 of are overruled. admissibility same, materiality, and of satisfaction, pres- to the out of appellant’s four overrule We jury. ence of the Some the motions error, complains ground which teenth pertained a civil filed suit the com- Deputy De testimony Sheriff plainant, O’Neal, Marie Peace Thоmas Sham and of the Justice tention and to conversations identification reference to their at- communications between her and complainant’s finger certain husband torneys. The motions were filed prints finger. wedding ánd a band on granted the first the trial. identify testimony This admissible to person explosion аs killed James appellant’s merit We find no O’Neal, the com Knox the husband of pro contention that Art. 28.01 V.A.C.C.P. plainant. granting hibits of motions error, limine on behalf ground state at the time By his fifteenth question. appellant complains the manner as these in the court’s action in depo- quashing subpoenas certain take
sitions had been issued at
request. error, perceive subpoenas as the
appear been issued a hear- without required by order
Arts. 39.02 and C.C.P. Martin v.
State, Tex.Cr.App.,
Appellant’s remaining ground of
error, contending statute, barratry P.C., unconstitutional because imposes right limitation on the speech,
free is overruled.
We remain convinced that the
of error considered in original opin- our properly
ion were disposedof.
Appellant’s motion for rehearing is over-
ruled.
Evelyn BROWNING, Lois Appellant, Texas,
The STATE Appellee. Doyle FLANAGAN, Appellant,
Gilbert Texas, Appellee. STATE of
Nos. Appeals Criminal of Texas.
July 10, 1968.
Rehearing Denied Oct.