*1 personally placed copies newspaper of the in the corridor adjacent to the courtroom. original opinion
While it true that in we did state our proposition herein that we were not committed to the that this contempt, was case proceeding of constructive this entire theory to have been initiated and tried on the that again relator contempt, was of constructive and we have concluded from a re-examination of that the record proved beyond published the a reasonable doubt that relator contemptuous pro- matter which constitutes the for this basis ceeding. In pointed originally, addition to what we out employees state offered the evidence of Texas the West Office Supply Company, they plates testified that made offset the C.C.C. brought News and that relator the order into their paid of business and for the work when it had been done- They copies identified in C.C.C. News introduced evidence brought shop work which relator had to their they from which plates, made the all of which bear the same Further, Glover, format. Ricky the state called who testified that copies relator hired him to deliver C.C.C. News that doing he had on printing several occasions seen relator thereof Boone, attorney, himself. The witness an testified that he corporate had secured the charter for relator relator had ap- on him occasions shown material which later peared in the C.C.C. News. C. H. Glover testified further he was helped relator’s landlord and on occasions relator run off copies and distribute of the C.C.C. News. Another witness called, bought who testified that he had a share of stock in Aldridge Publishing Company John from relator.
We find contempt no merit relator’s contention that is not copies here shown because the C.C.C. News were found during the corridor the noon recess. Remaining properly disposed convinced that we cause originally, rehearing relator’s motion for is overruled. Braggs
Theresa Mae v. State 31,861. April 27, No.
DAVIDSON, Judge, concurred.
WOODLEY, Judge, dissented. Houston, appellant. Woody,
Clyde W. Jr., Robertson, H. Attorney, Walton, Samuel Dan District Houston, Leon Attorney, Hughes, N. Assistants District Jon Austin, state. Attorney, for the Douglas, State’s MORRISON, Judge. Presiding drug; punishment, narcotic The offense years. for two reasons. The conviction must be reversed read testimony Chavez of Officer was recovered by agreement, how he into the which relates record to show yellow cellophane capsule appellant. In order following, “I heroin, find the we that such contained City to the Chemist capsule and turned it over then took that F. ran a chemical on Robert found No from Craw- contained heroin.” apparent ford in It is that what Crawford the record. not found was information which Chavez knowledge received hearsay scene, acquired on which he had State, probative as we held to be of no value in Pitcock v. such 866; report 324 W. S. 2d 867. No was introduced S. W. 2d in evidence. prosecutor
The statement of the
as to what Crawford’s
given
showed
not take the
of evidence
“under the
could
Clark,
Rep. 385,
parte
an
Ex
164 Tex.
sanction of
oath.”
Cr.
In the court did so opinion the same words as are set forth our in Alexander 779, State, v. Rep. 163 Tex. 2d we Cr. 288 S. W. which properly consequences held failed to admonish the accused required by of his Article V.A.C.C.P. *3 forth, judgment
For the reasons set the is reversed and the cause is remanded.
DAVIDSON, Judge (concurring). dealing Attention is 'called to the fact that we are not here with upon judgment a collateral attack a of conviction. This is a by attacking sufficiency direct appeal, attack the support evidence to the conviction. by
In 1931, Chap. Regular Acts of the Session of Legislature, 1959, by 42nd the amendment thereof Chap. 2, Legislature, pro- Acts 3rd of the 56th Called Session whereby charged ordinary felony visions are made one with an might by jury plea guilty waive a trial and enter a before C.C.P., 10a Ann. court. Arts. Vernon’s as amended. legislature, required however, that certain conditions must complied ordinary be with before a conviction of an might lawfully guilty upon plea be obtained before trial court. among requirements Chief it shall be neces- these was “that sary showing for the state to introduce evidence into the record * * * guilt person of the defendant and in no event shall a * * *
charged plea guilty be convicted his without suf- ficient support evidence to the same.”
Obviously legislature good making that reason for requirement, any that reason it did not want man whom prove guilty the state could not did not of the crime charged penitentiary upon sent before a trial court. requirement be fulfilled that said
In order to insure until conviction sufficient out, legislature precluded carried words, In other evidence had been introduced. proof a valid jurisdictional, proof guilt without which made judgment not be entered. of conviction could must be judgment is entered enter the
Jurisdiction to presumed waived. It cannot be established. con- appellant was upon which this
The statement of facts case in the single witness testified reflects that not a victed oath, duly administered. under the sanction of an resting upon discharged Here is the burden how prove guilt appellant. it to her counsel inquired State’s counsel of both reading of “agreeable” if it “that the formal with them to read be allowed the indictment be waived and that the state reports from and certain testify bringing chemist in to without the witnesses *4 person.” agreed so appellant
Both counsel could that the state prove dispose its case and in aside the that manner of and set showing legislature mandate of the that evidence be introduced guilt of the defendant. Thereupon testimony by given state’s counsel read the Chavez, upon justice witness court, to officer, effect that upon he and fellow appel- a information that violating by lant was having possession, law in her narcotics apprehended appellant stopped while her a automobile was at railway crossing. approached, appellant As the officers “ ‘ ” yellow seen to capsule a cellophane into her mouth.’ immediately officers placed appellant under arrest and carried hospital, her to a where she consented to take a saline result, solution. As a up partially she vomited dissolved capsule. capsule city was recovered and turned over to the chemist. testimony
That only proof related to that swallowed capsule a up. and vomited it The state was the burden under proving capsule of that the contained a narcotic. proof
To make that the state introduced “into evidence the F. Toxicologist of Robert Chemist and City showing of Houston Department Police that he ran a upon yellow capsule chemical by submitted to him July 10, 1959, Officer M. Chavez on and that an examination of that approximately revealed that it contained 2.8 milligrams heroin, drug.” and that heroin a narcotic is
Upon statement, that the state rested its case and relied thereon to show that contained narcotic.
To insufficiency demonstrate of the to meet requirements law, only necessary point is to out only proof that the posses- had a narcotic her sion exclusively unsworn, comes parte, hearsay from the ex report which state’s counsel said was that of the chemist of the city of Houston. hearsay testimony legitimate Such and, not evidence
itself, nothing. establishes If the might intended one be convicted upon before the trial court hearsay testimony rights, waiver of constitutional all that necessary would have been permit such action have would say been to nothing provide contrary. no condition to the But legislature required when the that such a conviction can only by be had showing introduction evidence guilt defendant, sup- which evidence must be sufficient to *5 port conviction, the just it occurs to me that it meant what said thereby gave and explicit of this courts state directions to be followed in such cases. The having spoken, the courts no would have right to legislative refuse to enforce the will and mandate or to substitute other and different rules. The wholly state requires failed to do that which the law
to done, be ought approved. this conviction not to be I concur in the reversal of this conviction for the reasons stated. (dissenting). Judge,
WOODLEY, of a unlawful indicted for Appellant felony theft were prior for drug convictions and two narcotic alleged punishment. of for enhancement choosing, appellant her own of
Represented counsel prior con- abandoned the jury trial and the waived victions. court, the trial before guilty but
Appellant pleaded before the or not appellant whether judge accept plea he asked would heroin,” said “Yes Sir.” “had and she she arresting Chavez, testimony M. examining trial the chemist officer, F. of Robert capsule recovered made contents jury under heroin, were read to and found it to be agreement and counsel counsel his from the state “that be allowed to read the State without reports trial certain from the chemist bringing testify person.” the witnesses in to foregoing ground
Reversal is ordered plea of upon a evidence is to sustain the conviction insufficient guilty the court. before question to pleading is not whether a defendant suf- may before the court waive the introduction may guilt,
ficient waive evidence to establish but whether he presence agree to the introduction witnesses their statements. may jury
If asserting a defendant his innocence at a appearance agree waive the of a witness and to his statement evidence, agree present used as if the witness testify facts, why a would to certain reason no valid pleading guilty defendant cannot do likewise. before court say pursuant To that the statement a of witness introduced agreement deny to appearance such is not evidence is that the may of the witness be waived. *6 question
The of whether or not the report chemist, agree- pursuant admitted to such 411 ment, probative Clark, were of parte in Ex value was resolved 385, 164 Tex. 128; State, Cr. R. 299 S.W. 2d Pitcock v. Tex. 168 129, Rep. 866; State, Cr. 324 2d v. S.W. Pitcock 168 Tex. Rep. 223, Cr. 324 2d 867. S.W. authorities, only
Under
portion
these
reproduced
testimony of Officer Chavez to the effect that
the chemist to
whom he
delivered it “ran an
on the
and found
implied
contained heroin”
possession
of information rather
possession
than the
knowledge. Though
Officer Chavez had
person
testified in
appellant’s trial,
at
his statement
to what
the chemist
probative
found would have had no
value. Pitcock
State,
v.
223,
Rep.
Tex. Cr.
sequences guilty, her judgment recites that was done and there is exception showing no bill of contrary, as there State, was in Alexander v. Tex. Cr. R. 288 S.W. 2d 779. judgment should be affirmed.
Victoriano Chavez v. State 31,739. April
No. No attorney appeal. of record on Douglas, Leon Attorney, Austin, for State’s the state.