William E. DAVIS, Appellant, v. The STATE of Texas, Appellee.
No. 48326.
Court of Criminal Appeals of Texas.
April 10, 1974.
507 S.W.2d 740
The evidence before the Court acting as a finder of the facts in this case was sufficient to authorize a finding that the appellant was drunk in a public place. Being drunk in a public place is a breach of the peace. See
The appellant‘s arrest was lawful and the search made at the county jail before placing the appellant in a cell was lawful. See Loy v. State, 502 S.W.2d 123 (Tex.Cr.App.1973); Brown v. State, 498 S.W.2d 343 (Tex.Cr.App.1973); Johnson v. State, 397 S.W.2d 441 (Tex.Cr.App.1965); King v. State, 166 Tex.Cr.R. 231, 312 S.W.2d 501 (1958).
The appellant also challenges the sufficiency of the evidence to show beyond a reasonable doubt that appellant illegally possessed marihuana. The evidence already summarized is sufficient to sustain the Court‘s finding that the appellant was guilty beyond a reasonable doubt of possessing marihuana.
In grounds of error six and eight, the appellant complains that he was not taken before a magistrate and informed of his rights prior to the search, allegedly in violation of
Appellant‘s final contention is that his sentence of three years confinement for the possession of .3 grams of marihuana is so harsh as to violate the constitutional right of equal protection. The period of imprisonment assessed by the Court was within the permissible range of punishment provided by statute (
The judgment is affirmed.
Opinion approved by the Court.
Robert O. Smith, Dist. Atty., & Charles Craig, Asst. Dist. Atty., Austin, and Jim D. Vollers, State‘s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
Conviction is for burglary of a coin operated machine on a plea of guilty to the jury; the punishment, two years.
Appellant‘s first ground of error complains that the judgment is void in that it shows that eleven instead of twelve jurors were impaneled. The pertinent portion of the judgment reads that “. . . a jury, to-wit: Burglary of a Coin Operated Machine and eleven others was duly selected, impaneled and sworn . . .” The above underlined portion is incorrect and should obviously have been filled in by reference to the foreman of the jury, Sterlin C. Moore.
Appellant made no issue of the number of jurors prior to his appeal of the conviction. There is no showing that only eleven jurors were impaneled. We reform the portion of the judgment above under the authority in
Ground of Error number two urges that appellant‘s plea of guilty should have been withdrawn by the trial court upon certain exculpatory testimony of the appellant. Appellant argues that such testimony clearly indicates that he did not open the machine with the intent to commit theft, an essential element of the crime. We do not agree.
Appellant‘s testimony coming closest to negating an intent to commit theft is to the effect that he found some keys in his pocket and he tried to see if the keys would open the machine and one of them did. Appellant did not testify that he had no intent to commit theft at the time he used the keys.
Appellant goes on to testify that he knew it was wrong to go into the machine and that he might be put in jail for doing so. We hold that the evidence was not such as to render it incumbent on the trial court to withdraw the guilty plea. In
Ground of Error number three complains that there was not a proper admonishment upon appellant‘s plea of guilty under
The record reflects the following:
“(End of jury voir dire.)
(Whereupon, a jury having been selected, the following proceedings were had before the jury).
THE COURT: At this time I‘ll ask the Defendant to stand, and we‘ll commence the trial by the reading of the indictment.
(Whereupon the indictment was read by Mr. Collins, Counsel for the State.)
THE COURT: And to which indictment the Defendant, William Davis, pleads guilty or not guilty?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: And I have hereto [sic] advised you of the consequences and you thoroughly understand that? [Emphasis Added]
THE DEFENDANT: Yes, sir.” [Emphasis Added]
There is an instrument in the record entitled “Arraignment of the Defendant on Plea of Guilty” signed by the trial court reciting that the proper admonishments were given following arraignment on the day of the trial. There is a sworn statement in the record by the appellant acknowledging that he was warned of the consequences of pleading guilty. The docket sheet reflects that appellant was warned of his rights and the consequences of his plea. In view of the above recitals, we conclude that the proper admonishments were given to appellant in a preliminary proceeding on the day of the trial.2
Finding no reversible error, the judgment as reformed is affirmed.
ONION, Presiding Judge (concurring).
I feel compelled to state my reasons for concurring as to the disposition of ground of error #3 contending there was not a proper admonishment under
The judgment reflects that the appellant was properly admonished as required by
“THE COURT: And to which indictment the Defendant, William Davis, pleads guilty or not guilty?
“THE DEFENDANT: Guilty, Your Honor.
“THE COURT: And I have hereto (sic) advised you of the consequences and you thoroughly understand that?
“THE DEFENDANT: Yes, sir.”
The docket sheet reflects that on May 1, 1973, prior to the jury trial on the same date, the appellant was “arraigned and
It appears from this record that the arraignment was delayed until the date of the trial and that shortly before trial the appellant, in connection with the arraignment, was admonished in accordance with
In the instant case it would have been better practice for the court to have complied with the requirements of
I concur.