TOM FRED CUNNINGHAM V. STATE
No. 33,871
Texas Court of Criminal Appeals
November 1, 1961
Motion for Rehearing Overruled January 3, 1962; Second Motion for Rehearing Overruled January 31, 1962
The jury rejected appellant‘s claim of alibi and resolved the issue of his guilt against him. The evidence is sufficient to sustain their verdict. Ramirez v. State, 335 S.W. 2d 228; Easley v. State, 336 S.W. 2d 428, and Hatfield v. State, 161 Texas Cr. R. 362, 276 S.W. 2d 829, sustain our holding.
Appellant was dissatisfied with the services of his counsel and it is apparent that in preparing his appeal he has not followed the advice of counsel familiar with proper procedure.
We have examined the many complaints he has attempted to present. As applied to the record herein, no merit is found in any of them.
Appellant is in no position to complain that he was charged and found guilty of ordinary robbery whereas the evidence was that firearms were used. See Carr v. State, 158 Texas Cr. R. 337, 255 S.W. 2d 870.
Robert Baray Lopez was not a competent witness in behalf of appellant, he having been indicted also for the robbery, and the trial court did not err in declining to have him brought from the penitentiary on a bench warrant, as appellant requested.
The judgment is affirmed.
WOODLEY, Presiding Judge, dissented on Motion for Rehearing.
Henry Wade, Criminal District Attorney, Phil Burleson, Assistant District Attorney, Dallas, and Leon Douglas, State‘s Attorney, Austin, for the state.
PER CURIAM.
Driving while intoxicated is the offense; the punishment, a fine of $100 and 5 days in jail.
The record is before us without a statement of facts or bills of exception. Nothing is presented for review.
The judgment is affirmed.
ON MOTION FOR REHEARING
MCDONALD, Judge.
Upon original submission, this case was affirmed in a Per Curiam opinion delivered November 1, 1961, the record being before us without a statement of facts or bills of exception, and nothing having been presented us for review.
A statement of facts signed by the trial judge on November 9, 1961, and filed in the trial court on November 9, 1961, was filed in this court on November 15, 1961.
Appellant states in his motion for rehearing that there was “error in the preparation of the transcript on appeal for the reason that there was no statement of facts of said proceedings included therein; that upon receiving said opinion of the affirmance of said judgment, appellant immediately filed his motion with the trial court, and good cause shown, same was so ordered.” Appellant states that a different result will probably obtain if this court considers the statement of facts now on file with this court.
We observe that the verdict of the jury was rendered on February 22, 1961; notice of appeal to this court was given on April 3, 1961; the case was submitted originally to this court on
The state challenges the late filing of this statement of facts and its consideration by this court.
We are aware of the provisions of Section 4 of Article 759a, V.A.C.C.P., allowing a filing after the 90 days provided when the trial judge signs same. However, here, the statement of facts was filed 220 days after notice of appeal was given, or 130 days beyond the normal 90-day period in which to file. We further observe that the statement of facts filed in this court was signed by the trial court judge some 8 days after the deliverance of the original opinion.
While this court has, on occasion, withdrawn its original per curiam opinion and allowed the statement of facts to be filed and considered by this court, it has only done so in cases where the statement of facts had been filed with the trial court prior to original submission of the case before this court.
In the recent opinion of Selvidge v. State, 171 Texas Cr. Rep. 140, 345 S.W. 2d 523, on rehearing, this court had an occasion to consider and decide a very similar fact situation. There, after the original submission, a statement of facts was filed and signed by the trial court judge, some 8 days after the deliverance of the original opinion. This court, in refusing to consider the late filed statement of facts, in construing the legislative intent behind
“It is our conclusion that to hold otherwise would prohibit us from ever being able to effectively terminate appeals to this court.”
We think the Selvidge case controls the disposition of this case.
Appellant‘s motion for rehearing is overruled.
ON APPELLANT‘S MOTION FOR REHEARING
WOODLEY, Presiding Judge (dissenting).
A statement of facts, approved by the trial judge since the affirmance of the judgment by per curiam opinion on November 1, 1961, has been filed and forwarded to this court. The state
Prior to the amendment of
The 56th Legislature amended
“and for good cause shown, the judge trying the cause may further extend the time in which to file the statement of facts, and shall have the power, in term time or vacation, upon application for good cause to extend for as many times as deemed necessary the time for preparation and filing of statement of facts, and the approval of the statement of facts after the expiration of the ninety (90) day period shall be sufficient proof that the time for filing was properly extended.”
The state‘s brief presents strong argument why there should be some limitation upon the time which the trial court may allow by extension. The legislature, however, has fixed no such limitation.
The legislature having provided that the trial judge may extend the time for filing the statement of facts for good cause shown, without reference to whether the transcript has been forwarded or whether the case has been submitted, this court is without authority to do other than comply with the statute. Whether there should be a limitation upon extensions by the trial court is for the legislature.
If Selvidge v. State, supra, supports the state‘s position it should be overruled.
I respectfully dissent.