*1 165 thereto; subsequent but and events CRAIN, Appellant, R. Paul its attend- increase in traffic with heavy danger readily foresee- ant noise and was a fact, predictable proof that able and Texas, Appellee. of The STATE happened respondents’ property this has No. 36919. is the best of what the evidence available City hap- Council have would Appeals should known of Criminal of Texas. Court pen findings. when it made its Assessments 7, 1964. Oct. arbitrary based on an determination of Rehearing 25, Denied 1964. Nov. permitted benefits cannot be to stand. judgment Ap- of Court Civil Rehearing Denied Motion for Second peals is affirmed. 13, Jan. ON MOTION FOR REHEARING
City Houston has filed a motion
rehearing in which it asks the cause be
remanded to the trial court for retrial. request
basis for the is that the case was legal theory
tried on an erroneous permitted
that City should be offer evi finding City
dence that Council sup arbitrary
was not In unreasonable.
port City request, of its Houston cites
City Parking Pigeonhole of San Antonio v. 318, Texas, 218, 223, 158Tex. 311 S.W.2d case, (1958),
ing judg concluded that the trial court’s reversed,
ment was erroneous should be
we remanded the cause for to afford retrial respondent opportunity develop its
evidence. On the record before us in that
case, procedure our normal would have re
quired judgment against rendition of
respondent; having reversed the trial judgment,
court’s authorized we were Procedure, 505,
Rule Texas Rules of Civil
to remand lies the differ instead. Therein
ence between that case and this. court rendered this case the trial
In rec judgment a correct entered that an er-
ord before it. is well settled judgment court cannot be
rorless of a trial per justice in the or to
reversed interest losing another trial. party
mit the have Davis, Tex. 175 S.W.
See Davis 141 Mc (1943); 226 Life Co. v.
2d National 81, 113 (1938);
Kelvey, 131Tex. 160 S.W.2d Brandon, Employers’
Texas Ins. Ass’n v. (1936).
126 Tex. rehearing is overruled.
The motion *2 Kilgarlin, Fred Phelps, S. W. W. Jim *3 Robinson, Houston, appellant.
W. Briscoe, E. Atty., Frank Carl F. Dist. Dally Zgourides, Hughes, N. Gus J. Jon Houston, Attys., Asst. Dist. and Leon B. Austin, Douglas, Atty., for the State. State’s BELCHER, Commissioner. murder; pun- The is for conviction ishment, death.
The testimony of the state shows that appellant Crain, Russell killed Warren old, boy, by choking a eleven months Except strangling him with his hands. paragraph, one deleted volun- tary written statement made to officer day killing, of the and two notes by appellant, written all of which show killing boy by appellant, of the were objection. introduced in evidence without Relying temporary insanity as defense, plea appellant sole a entered guilty. of not Testifying in his own be- half, appellant that he killed admitted boy by strangling him, choking and but stated that he blacked out (appellant) at the time and did realize he not committing such act until it was over. He offered other testimony bearing on his insanity. defense of issue of The in resolved sanity against appellant, and the evi support dence is their verdict. sufficient to Appellant that the insists that he be refusing erred his motion expense state a examined at the not competent psychiatrist who con prosecution. nected with the statutory There no constitutional or provision services be authorizing that such per- a county furnished or state to charged State, Ellzey son with crime. appellant cross-examination of the 211; Tex.Cr.R. part 259 S.W.2d Bush inwas as follows: State, Tex.Cr.App., “Q. (State) you Isn’t it true were convicted as theft to—for and re- It is contended that the trial court ceived four pay months and loss of ruling erred in if intro coat, coat, for stealing top and a part record, military duced of his you suit from a soldier while were permitted state would to introduce Germany? You received four month record, again remainder of such pay and loss of from it ?” refusing military the offer of his rec Appellant: “Objection. Its re- perfect ord exception. his bill of buttal.” The statement of the main trial facts on objection. Court: “Sustain the reveals that from a discussion between ** * *4 Put a time limit on it.” parties the court and that counsel for both “Q. you When were convicted military the of that record consisted of numerous by reports given court martial and four months and instruments. pay and of loss for theft?” that, The court stated he understood question upon “A. There awas the rule, appellant part the any if introduced theft that was involved.” record, part any the the state could offer remainder; any or all of the action that “Q. convicted, You were weren’t premature the the court was until you?” military portion record or of it was lesser, “A. I yes of a convicted evidence; offered in a bill of and that sir.” exception perfected could if there was be During the cross-examination of Dr. Sher objection by ruling. followed an adverse he testified: appellant No by offer was made the of all any portion military record in of his “Q. reports In your you have stated evidence. In the absence of offer in you that the defendant told he was record, military evidence of the no error court martialed going and AWOL automobile, for theft of an is that is shown. correct?” is insisted that the trial court my “A. That’s what I have in re- erred in refusing jury to instruct the not to ports.” prosecutor’s questions consider the as to “Q. you Could have confused that appellant whether discharged with the theft of some clothes?” he had been being convicted of absent without leave and for theft of an automo suppose I “A. I don’t so but think so. bile while in military the service in Ger spread I pretty think there’s some wide many, though appellant even answered between clothes and an automobile. negative. the That’s he what told me.” “Q. agree spread I there is a wide Following questions appel- two regarding between the offense listed. He told lant’s convictions for AWOL and auto- you in 1959he received a court martial theft, request mobile was made of the going and AWOL theft of an au- court jury instruct the disregard tomobile?” questions the as to whether convictions were the reasons for discharge. That’s correct.” “A. evidence, Appellant objected no error turned to the clerk.
In view of all the qualifications, and excepted the court in- to such is shown refusal of exception was certified jury ques- consider the struct not to court, filed. bystanders bills were tions about the convictions. no former cannot be Therefore the bills considered. Complaint made of the use State, 169 Tex.Cr.R. Willie phrase person “a tried shall be Tex. 159; State, English S.W.2d for an offense if he on becomes insane” 56, 338 Cr.R. ground that it comment constitutes judgment is affirmed. evidence, weight thereby leading to believe that MOTION ON APPELLANT’S be would not on trial if were insane. FOR REHEARING charge insanity
From court’s findings and the made thereon to be MORRISON, Judge. appears jury, phrase it com- plained jury, of did not mislead coun appointed court Appellant’s appellant’s rights fairly were orig our argument attacks sel forceful adequately protected charge. in the He major respects. opinion two inal discuss complains failure to of our Complaint is made the refusal of refusing contention that the *5 jury, they members of the after had been argument request open close the his and to discharged, appellant’s to talk with attor- insanity. did Though we the on issue ney, they agreed had not dis- to appel in to this contention fail discuss cuss what went during on their delibera- question dispose case, did of this lant’s we tions, ground agreement on the that their State, Knoeppel Tex. opinion in in v. our impossible made it any jury to ascertain 493, the same Cr.App., decided S.W.2d 382 misconduct. sub original case on day appellant’s as in the adopt by reference mission. We statutory There is no authority the reasons there stated case at bar the requiring disclosure the members question. disposition of this jury of the of the matters considered during their upon The the agree deliberations. mere his He attack further focused jury ment of the opinion not discuss and original to their delib last of our paragraph is erations not he alone as applying, sufficient call not to us task for takes to State, State, for a reversal. 136, Tex.Cr. Farrar v. 162 Tex.Cr.R.says, the rule in Moore v. 114; State, trial S.W.2d Graves In the App., v. 380 626. Moore S.W.2d 277 Tex.Cr.App., 486, 382 following action S.W.2d the judge 1964. certified that
was taken: appellant’s request The refusal of certify to the not “The does Court jury, in accordance with to instruct therein of the contents truthfulness Ann.P.C., provisions of Art. Vernon’s only certify they that are he does sup object punishment is that the Defendant.” contentions of press crime and reform offender was error, “the majority as it that rehearing not would constitute comment held On weight v. bill constituted of the evidence. White Court’s certificate State, all”, therefore, no rule Tex.Cr.R. no action at But procedure in Moore. announced was something in that have exception The bills contained here we do to the referred transcript in his certificate timely filed with the were effect, error if and, in stated that record clerk of the trial court. bills were thereby. he was bound presented there qualified judge timely re- important proof and far differ- issue Another more which was not con- himself bring ence is that Moore did not tested. within the rule announced Willis eighth His contention that the court was State, supra, English State and whereas grant erred in him failing additional appellant did. In to demonstrate order peremptory challenges after he had been appellant’s that in- cause was no wise forced challenge to exercise his last on a jured by our to the adherence Willis been venireman who should have removed rule, English we will discuss ques- This last cause. venireman in our contentions which were covered Hoza, tion was Mr. and his examination original opinion. paragraph In the first grounds reveals no for reversal.
hereof have answered his fourth con- we tention. ninth His contention was that one jurors
of the had under served a false His fifth contention was that deputy charge name and that the sheriff in overruling challenge for court erred in was venire informed of true she cause Pancamo when to venirewoman questioned name before was on voir replied question, in the affirmative to the dire. The summons addressed him you you “If him find sane find Murphy Murphy Wallace at Wallace’s ad guilty, him to the you would still send appeared dress. Mr. Wallace for service she electric to this question chair?” Prior and notified as the mistake the bailiff had been informed Murphy but was during addressed as Mr. old charged killing with his 11 months venireman, interrogation. having only child issue to be sub told the bailiff that his been names had appel transposed, mitted for her decision was that of question answered counsel’s sanity. her lant’s Under the circumstances correcting without them because he was prejudgment. answer no showed Murphy often addressed Mr. as well as
Mr. Wallace and that his wife often an *6 swered Murphy. when addressed as Mrs. His sixth contention is that appears to us that Mr. Wallace was court overruling challenge erred in his perfect in acting good faith, per and we for to Craig. cause venirewoman After injury ceive no from the above and will interrogation careful back and with forth question appel therefore not discuss the slight responses, in variation Mrs. diligence. lant’s Craig finally told the court that if she found the defendant to be of unsound His contention was that eleventh mind by evidence, a preponderance of the granting a trial the court erred in not new she could find guilty him not would juror Laing, it when was discovered that anyone be fair anytime any with at for business, been addition to his insurance had purpose. an officer in the Farm Bureau unit local years prior
which had some three to His seventh voting contention was that trial rec instant been critical of the erred in overruling challenge Kilgarlin, court his ord of the Honorable Bill who for cause to venirewoman She Bowdoin. was at that time a member of the Texas also been Representatives. Laing’s had informed that there be would House of On voir no appellant’s guilt examination, contest as to type his once dire when asked business, State being replied had made out its case. This an he that he was insur true, agent. the sole issue her any ques for decision was was ance He not asked preponderance be answered a from concerning tion his activities in connection evidence, and we do not find her dis hearing with the Farm Bureau. At the qualified may trial, Attorney she have Kil- said the motion for new require she improper garlin would length burdén a testified at about breakfast im- authorizing the at ance with the statutes Bureau which given by the local Farm penalty. position the death had been voting record in the House that after the criticized stated telephone Laing talked to
he had over fifteenth contention His Laing had him that remem- told permit him refusing to the court Attorney being Kilgarlin’s bered at before the to introduce evidence however, during Laing, his ex- breakfast. opin expert express the who would witness after remembered the amination the trial penalty death awarding ion that breakfast, Kilgarlin’s but did not recall that suppress What does deter crime. record was was unable discussed. Counsel his twelfth we have in connection with said prejudice against to establish such answer deemed a sufficient contention is personally him have rendered might as this contention. Laing unacceptable juror. aas His last contention not heretofore His twelfth contention was that deny the court erred discussed is that Ann.C.C.P., Article which Vernon’s prior for a ing motion made to trial provides for in a challenge for cause production “all among things other capital case if con the venireman has written made witnesses statements scruples against the infliction of scientious record this connection with case.” penalty, the death is unconstitutional. We made psychiatric report reflects that a approach commend counsel for his studious respects In available to counsel. all other problem, to this but we are forced carefully rules judge the trial followed the agree Leg unless with State that State, 172 Tex.Cr. announced in Gaskin v. islature in its the death App., wisdom abolishes has crime, injury. shown possible no penalty punishment 616, supra, Section of Article is essential Remaining cause was convinced that this may penalty in order that a death verdict properly originally, appellant’s mo- decided predictable. be rehearing tion overruled. expert that he witnesses WOODLEY, Presiding Judge (concur- sought properly to call would be heard ring). committee, Legislative did not err in hear the witnesses refusing to qualification The court’s according *7 duty exception of his of reads: to the office bills to the above Article. he was bound follow foregoing “Each of the Defendant’s have been for him have would idle to exception qualified is Formal Bills of an forum. conducted academic matter, facts, to the extent that set or of the conclusions Defendant His fourteenth contention was that are forth in each of bills which him, permitting the court in not at variance from facts shown 2, case, interpretation Article as Vernon’s the official record this prepared by court clerk and the Ann.P.C., as interrogate to the venire so reporter, by me are not certified they them inflicted the to inform that if as be- as true but are certified me penalty they not be reform death would Defendant; ing not follow the contentions of the ing the therefore offender and qualified interpreta and each of the bills so as ing the law Texas. Such approved only insofar is and certified object punishment in tion of the correctly as as it states matters be at vari- field of criminal law would appear complete they in the full and OCHOA, Appellant, Carlos Alcoser Question statement of facts in and An- transcript swer form the official
both of are filed in this case.” which Texas, Appellee. The STATE of No. 38293. qualification The Ormond to Moore’s bill reads: Appeals of Court of Criminal Texas. June 1965. Exceptions foregoing “The Bill of was Rehearing Denied Oct.
presented to me in due time was filed, approved subject and ordered to following qualifications: certify Court
“The does not to
truthfulness the contents therein certify they
but he does are
only contentions of the Defendant.”
Comparison ap- qualification to
pellant’s qualification formal bills with the
of Ormond Moore’s bill manifests that if all,”
the latter “constituted no action at qualification same true as to the bills. qualification, attempted
If the court’s or
qualification, of Ormond Moore’s formal requires
bill that such bill be as treated
approved, appel- the same is true as to exception
lant’s formal bills and there nothing appellant except to, for the agree disagree
or to with. bill Moore was treated the ma-
jority approved by judge as the trial with- holding
out Such was dicta. qualification. reached in case result before us holding wrong.
demonstrates exception
Appellant’s formal bills of can- judge
not be considered because approve
refused them filed and agree reasons, did not qualification. excepted to his Art.
760d, and cases cited Ann.C.C.P. Vernon’s
under Note disposed appeal properly
This submission, reason I
original for which overruling
concur in rehearing.
motion