*1 appellant question, in not paid, check he come was wrote which never him, say showing and see that but was unable to whether since there admissible was no $2,- presented appellant or not he that been drawee advised check had Chapa Recently in good 650.00 check after bank was not before or and dishonored. 943, appellant State, Tex.Cr.App., we gave the check which is the basis v. prosecution. rely Regardless for this held the State not on of when that since 2, 567b, statutory presumption, he was back on Article informed of Sec. account, but, V.A.P.C., here its case appellant’s remains that established fact it is that account would not have had direct evidence not essential sufficient question presentment it to in and dishonor be shown. funds in cover the check prior out- when as all other written as well Finding support the evidence sufficient to checks, $2,650.00 had if the standing even ap- the conviction and no reversible error charged been to his account. not back judgment pearing, is affirmed. 386, 320 State, v. Arnwine 167 Tex.Cr.R. 353,
S.W.2d relied in bar applicable at
not case that checks
that case there no evidence depleted accused’s account alleged
drawn before the check in above,
dictment, there here, while as shown is such evidence. Chester BASS, Appellant, State, v. 123 Tex.Cr.R. v. Jones 418, there show S.W.2d was evidence The STATE of Texas, Appellee. question at the time the check No. 41055. drawn there funds in were sufficient Appeals Criminal pay not Court of Texas. bank it was the same presented in paid because was not due it Feb. 1968. here. Such the case before course. is not us Rehearing April Denied 1968. Kuykendall 143 Tex.Cr.R. Rehearing May 22, Second by appellant, Denied also cited S.W.2d applicable, supra, Jones, not because like at there were sufficient funds bank question
the time the check in have should drawn,
reached the it bank on which was not presented
but was due course
payment. Moody v. Such true as to is also
State, Tex.Cr.App., 539, cited brief.
Mayes 145 Tex.Cr.R. controlling here because not pre-
in that showing case there alleged
sentment dishonor of check This case was decided indictment.
prior to the Amendment of Article
567b, supra.
Appellant ex contends State’s by appellant # a check on
hibit written prior
the same account to the check *2 aforesaid,
ment, County fraudulently carry away take and Barfield, the from the B. office W. Corporation Clerk Court of Houston, County, Tex- City of of Harris *3 as, to-wit, papers, com- certain filed four 64260796, 64260795, plaints numbered 64260798,styled and The State 64260797 Hodges, of Texas vs. Vernon James there papers which then and said were office, lawfully deposited with in said alter, suppress, the con- destroy, intent to same, ceal, to dispose and so as of the prevent pa- filed the lawful use of such pers.” grounds We shall error discuss the of urged by appellant with in his brief filed the clerk the trial of court.
It is that the in insisted court erred over- quash ruling appellant’s the motion to allege, parti- dictment not in because cular, sought appellant what “lawful use” Caldwell, Turner, Bobby H. B. James complaints. It is prevent taking in to the Houston, appellant. for by committed also contended error was Vance, Atty., Joseph Dist. W. Carol S. appellant’s excep- the court in overruling Hope, R. Dist. Doucette and Asst. W. failing tion for de- to the court’s Houston, Douglas, Attys., Leon B. and refusing the and in fine term “lawful use” Austin, Atty., the for State. State’s grant instructed his motion an verdict guilty pre-
of not because no evidence was the use sented with reference to lawful OPINION appellant prevented. DICE, Judge. in It first that the should be noted drawn, dictment, language the followed 1427, under Art. Appellant was convicted statute, 1427, supra. is of Art. the This papers filed P.C., of theft of the offense of ordinarily 30 sufficient. at con- assessed punishment was and his Tex.Jur.2d 27; State, 154 Department Cor- Sec. v. Tex.Cr. Borski the Texas finement in years. 180; seven for a term of App. Campbell rections 225 S.W.2d State, Tex.Cr.App. im- jury, the Upon recommendation in suggested It 847. also follows the form suspended position sentence Edition, Forms, Willson’s Criminal Seventh pro- placed upon appellant court page at Sec. conditions. terms and upon certain bation omitting formal indictment, The 45.01, provisions Under the parts, charged: Ann.C.C.P., purpose a com Vernon’s * “* * plaint corporation is to court commence on or BASS that CHESTER thereby juris proceedings confer December, A.D. day of 16th about This is the ordi State, and an- diction court. County and said 1964, in complaint. nary purpose a indict- and lawful use of of this presentment terior Tex.Cr.App. complaints The existence such Bragg v. See: testimony of further by appellant. established cited was, Hodges—which Vernon James indictment not that the agree doWe substance, gave appellant he $115 what “law specifically alleged have should pay and care of traffic tickets take four prevent tak appellant sought ful use” later, office, he saw complaints. ing tore them complaints four when up put them trash. Tex.App.
Witte by appellant, clearly cited dis S.W. evi It further that the insisted case, tinguishable present from the there dence insufficient because paper that case filed was a deed complaints regular proof four *4 the been forged state had contended their face. and on valid destroyed pre the accused to and then 1427, supra, not construe Art. as We do being prosecution against used vent its in a prove papers that the state the on requiring present In case there forgery. him for the unlawfully file and in- taken were valid complaints indication that filed the struments. corporation the against court Vernon James than law Hodges any were for use to other lastly Appellant that his con insists prosecution against fully commence him. 38.14, stand, viction Art. C.C. cannot under complaints that the Proof took P., testimony upon of it is based the jury on file the was sufficient to authorize Hodges, the who witness Vernon James to that he their prevent find did so law to matter accomplice be an as a shown to ful use. testimony not suf of law whose ficiently corroborated. appellant’s complaint the
While to charge define “lawful failing court’s for fe> the that the witness While record shows properly for use” is not before us review Hodges appellant, holding went to who-was the exception been made having —no to bondsman, purpose himself as a for the out writing, required by charge, in as Arts. appellant pay take care having of off and that, 36.15, observe 36.14 and C.C.P.—we tickets, of the four traffic the evidence does facts, required. the under no definition Hodges a not show that as matter lawof unlawfully a tak- party the crime to of error, appellant ground next his of ing complaints. the failing to grant court the erred sists of the him a new trial because “the verdict No issue was to submitted contrary and the evi- jury to the Law jury ac as whether the an to witness was dence.” complice. Appellant position to is in no complain of the court’s to submit failure that the first insisted state’s It exception issue, such the absence an evidence fails because there was no case writing, request or a court’s complaints ever seen four were that the required by as of the Arts. 36.14 36.15 Barfield, court clerk corporation B.W. Code of Procedure. Smith v. Criminal indictment. named in the State, Tex.Cr.App., 415 We evi overrule the and find the contention that Bar- proof show does not While dence sufficient to sustain the conviction. complaints, original actually saw the field that of his as- testimony, together with his
sistant,
Sullivan,
Appellant’s
complaint
show
to certain
does
G. J.
jury argument
filed. Later
and of the
action in
complaints were made
court’s
duplicate
case,
missing,
testify
a
to
they
permitting
found
witness
were
presented
the first
supple-
made.
for
time in his
copies court,
mercy
may
be
him and
himself
ask for
will not
he
mental brief filed
error,
mercy by
taking
than
under Sec.
means other
stand
unassigned
considered as
40.09,
aas witness.
of Art.
C.C.P.
reasonably ap-
The second remark can be
The
is affirmed.
judgment
plied
produce
the failure
to
defense
Velta
other testi-
the witness
Robinson or
OPINION
mony
than
defendant.
FOR
ON APPELLANT’S MOTION
complained
clearly
The
remark
third
REHEARING
reflects that
reference was not to
téstify
failure of
defendant to
but to
WOODLEY, Presiding Judge.
Robinson,
produce
the failure
Velta
an
available witness.
Appellant
un-
urges that we
consider
assigned
complaint
that certain
error
argument
“For the
to come
within
remarks of counsel for the
were com-
state
mandatory prohibition
supra,
testify.
ments
his failure to
(now
V.A.C.C.P.)
Art. 38.08
it must be
reasonably applied
be
such as cannot
Deprivation
a constitutional
produce
the failure of the accused
other
right will be reviewed in the interest of
testimony than
his own.” Clark
*5
justice, though unassigned. McClellan v.
Tex.Cr.App.,
also
362
647. See
S.W.2d
State, Tex.Cr.App.,
As to of on persons other than the rehearing is observed motion for is over- accused, counsel, may including ask ruled.