*1
taking
that the
Relator contends further
CULBERT, Appellant,
Lloyd
Harold
a
of
children
her
without notice was viola-
process, relying principally upon
tion of due
Manzo,
authority
Armstrong
Texas, Appellee.
The STATE
U.S.
divorced ings Dec. 1966. adoption child consti- his deprivation process tuted a due of law. 18, 1967. Rehearing Denied Jan. stated that without doubt notice Court judicial required where result of the “the Rehearing Dissenting Opinion on Denial of deprive a proceeding permanently March 1967. legitimate parent parenthood im- all that plies.” Moreover, the Court held that May 10, Rehearing Denied 1967. Second infirmity resulting constitutional from fail- ure give cured a notice could not be Rehearing 21, 1967. Third Denied June subsequent hearing on a to set aside motion decree; particularly since the burden proof, normally parties seeking the
adoption, subsequent shifted hear-
ing parenthood. party who had lost burden,
This observed, not “would imposed upon
have been he him had
given timely notice accord with Con-
stitution.” Armstrong, pres contrast to presents
ent case proc no due violations of
ess. The court’s order take the children custody,
from although relator’s without
notice, order; purely temporary does purport
not adjudication abe re final Clearly rights.
lator’s contem the order
plates only a temporary interruption of cus
tody notice, by proper appro to be followed
priate pleadings, a full hearing proof upon burden will not be relator parties
but seeking change
custody. hold that the district court had the
power temporary to issue order Moreover, the
March court did order, issuing its abuse discretion deprive
and neither does order relator process law. due writ of mandamus is denied.
647 unknown moved without the consent and of owner; appellant’s fingerprints the were jack car found on the used raise the from which the tires had and wheels removed, wheels which and two tires and description were fit the of those stolen appellant drove found in the car which away from the car lot. prior alleged
The convictions for en- by punishment proved hancement of were Department records of the Cor- Texas of rections, copies including the certified Gray appeal only), Houston, for (on Will sentences, judgments photographs and and appellant. fingerprints, testimony identifying and such Vance, C. Carol S. James fingerprints photographs and those the as Brough, and Richard M. DeGuerin Joe appellant. Houston, Shaffer, Attys., Asst. Dist. Leon question appeal The sole raised on this Atty., Austin, the Douglas, B. State’s sufficiency is the the evidence to State. the allegation
the of the indictment that conviction in 1963 for an offense com- was judgment mitted after in the of conviction 1961 had become final. WOODLEY, Judge. An examination of the Statement theft; felony punish- The offense is full, Facts, agreed and true and certified as
ment, by prior enhanced convictions two correct, when reveals no evidence as to for a Ann. (Art. like offense 63 Vernon’s appellant offense theft P.C.), life. April 26, was convicted 1963 com- on was mitted. Trial appeal given had was and notice of
prior January 1, 1966. Investigator Stevenson, Criminal T. J. County Office, Harris Sheriff’s The indictment alleged auto- theft two called a and testified he as witness that mobile tires and the value of over wheels of employed capacity that He Gage; pur- from R. and for $50.00 J. appellant told that pose was convicted punishment, alleged enhancing alleged cause and that the location was prior that to the commission of said theft 1621 He an- Milam. was then asked and appellant felony was convicted of theft swered : County Criminal District Court of Harris 10, 1961, on March in Cause No. “Q. jury Tell the the date which the
that after conviction final such had become offense occurred items felony, he theft, committed the offense were involved in that offense? 26, 1963, April and on was convicted of said jacks.” “A. Tires and offense in Cause No. 105178 in Criminal wheels County, District Texas. Harris apparent question It sufficiency evidence sus- when the offense was committed was appel- by tain the conviction is conceded answered. lant’s brief and need out. not be set Suf- driving fice say was seen contention away from car where two tires and lot evidence is insufficient to invoke provision P.C., wheels of the re- value of had been of Art. 63 but is sufficient to $50.00 Hooey, Judge en- Fred M. of the Crim- felony theft sustain conviction his felony Harris inal District Court No. prior hanced conviction for place County, time and Texas—at Article theft under P.C. Caption thereto on as shown are reformed judgment and sentence Page One.” *3 provide appellant’s confinement in the years. penitentiary Haines for a term ten authority Angle v. the Under State, Tex.Cr.App., v. 391 S.W.2d 718, State, 305, 306 165 Tex.Cr.R. S.W.2d the original and the statement reformed, judgment the is affirmed. As answers, questions and now certified to there having inadvertently omitted from, passing upon the considered in will be ON STATE’S MOTION FOR rehearing. motion for state’s REHEARING reflects presented, the record As now DICE, Judge. wit- that on direct examination state’s Stevenson, The now moves this court to set to the 1963 referring state T. ness J. opinion 7, 1966, things— conviction, among which aside its of December other testified— felony appellant’s affirmed conviction for as follows: judgment and sen- theft and reformed the jury the on which “Q date Tell provide confinement tence to occurred, the items the offense penitentiary years for a term ten (en- in that of- that were involved 62 n V.P.C.) now hanced under Art. and to the 13th fense ? A It onwas the original judgment affirm of conviction February in 1963. punishment with under Art. —enhanced supra imprisonment. life which the “Q That the date was —at sir, Yes, A offense occurred? It that adduced is insisted evidence was night 13th.” of the trial, of com- showing the date theft for which mission of offense did the witness appears It thus April was convicted on commit- testify was as to when the offense inadvertently February which omitted evidence was committed on ted and that it was original from the statement of facts. con- 13, 1963, appellant’s which after was viction in became final. contention, state of its upon in this court relies an instrument filed au state proof The offered cause, 21, 1966, styled on December appellant’s the enhancement thorized questions in- “Certification of answers and 63, supra. punishment under Art. advertently original statement omitted from fact_” rehearing motion for The state’s instrument, Such certified to judg- reforming the granted, our order reporter the official court who took aside, and ment sentence is set and shorthand, proceedings in the con- cause in felony of conviction original judgment agreement signed by appellant’s an tains Art. under theft, punishment enhanced with trial counsel and for the state counsel imprisonment, affirmed. supra, at life counsel foregoing “that certifica- and above FOR APPELLANT’S MOTION ON questions tion of and inadvertent- answers REHEARING original ly omitted from Statement and should Facts correct said Cause is MORRISON, (dissenting). Judge approved previously be included in the written without majority The overrules said had Statement of Facts in Cause the writer opinion, Judge ONION but the Honorable the trial before above, in comply motion for the rule set forth are convinced until ex- it filed this Court granted and will not rehearing should be was submission, rea- supra, original for this Angle State, after plain reasons. our opinion son should have been considered. original did not involve not cited in the McDonald, State, 385 rule announced in supplementation of a record while disposi- unpub- consistent with this original S.W.2d case in this Court. The to con- tion. opinion in that case declined lished be- us
sider the statement of facts before involve case before us does faulty ap- we deemed a cause of what question dimension and of constitutional opin- proval original After of counsel. therefore, holding of the Court down, known ion handed made Henry States in v. State United Angle’sattorney record to this *4 564, 443, 13 Mississippi, 85 S.Ct. 379 U.S. appeal, together and on at trial application. L.Ed.2d has no See White fact, State, did, attorney in for the State, Tex.Cr.App., 410 S.W.2d this agree that before the record which was complete respectfully overruling Court constituted a statement dissent to facts appellant’s facts and that there were no additional rehearing. for motion which elicited trial on the merits incorporated
were not therein. As supra, readily apparent now, State, Angle v. ON APPELLANT’S MO- SECOND supplementation did not involve TION FOR REHEARING record, but an of what was authentication pub- already here. cited in The cases BELCHER, Judge. opinion Angle comparable lished relate to majority opinion Appellant urges situations, the State help and are of no supra, supported by Angle State, is not supplement in their effort the record after only correction of the statement because opinion an has been handed down. While Angle by way affidavits in facts controlling, point we here do out attorneys approved of the who the record. supplementation approved by ap- pellant’s counsel, who, our trial far so Angle In this court considered the state- appears, longer representing record was not complete by ment facts shown such to be appellant, represented because appellant” and affidavits “In fairness to Gray this Court Honorable Will said: alone. would “While are there cases Tex.Cr.App., State, McDonald v. holding, appear support contrary we S.W.2d Court had deal this occasion to evi- have decided that the additional supplementation prior with a record of the dence that the record has come into docket, ma- to submission on our and the attorneys way affidavits who effectively jority that in concluded order to approved avail- the statement of facts Court, litigation terminate we before this present under the record able only would consider those statements may be considered.” statement of facts which were filed with clerk court, court, approved by the trial trial consider this record in which a clerical To original relating prior prior only and filed in error the date of a this Court resulting submission number of offense in a on our docket. A conviction used con- corrected con- cases were cited in enhancement such has holding Angle. sistent with our clusion. opinion It is noted that the Court of The instrument relied our Henry the United opinion on ‘Rate’s does not States in rehearing motion for its Mississippi, 379 U.S. v. State of precedent,
S.Ct. 13 L.Ed.2d set longer bound appellate are courts no
in all cases to confine themselves to appeal up from the trial
record sent
court. rehearing
Appellant’s motion for second
is overruled.
MORRISON, ONION, JJ., dissent overruling motion second rehearing. O’Dowd, Houston, appel- W. John
lant. Vance, M. Carol S. Richard Applewhite, Asst. DeGuerin and Gerald *5 Attys., Houston, Doug- B. and Leon Vincent Alfonso ZULPO, Appellant, las, Austin, for the State’s State. of Texas, The STATE Appellee. No. 40233. Appeals WOODLEY, Judge. Presiding of Texas. Criminal
May 10, 1967. exposure indecent to a offense is Ann.P.C.); (Art. child 535c Vernon’s Rehearing Denied June punishment, years. court, jury trial Trial was before being plea guilty. waived. The filed trial The defendant’s brief grounds forth of error. court sets three is insuffi- that the evidence The first is in the cause. cient to a conviction stipulation Appellant entered into express- open court writing in evidence in confrontation ly waiving appearance, witnesses and cross-examination of the introduction consenting further affidavits, statements testimony by written documentary evi- and other of witnesses dence. open court writing
In said Federal and State Constitutional waived his and, after Right against self incrimination sworn, judiqially upon oath having been following confessed “to the