East v. State
420 S.W.2d 414
Tex. Crim. App.
1967
Check Treatment

*1 accused present accused, had crime, and alleged the occurrence of the

might as to whether a material witness act.” knowingly’

the accused committed

See, State, Tex.Cr.App., 414 also, Bosley v. 468. rule,

Under such the court did name require disclosure of informer, proof that there is no any manner responsible informer appellant’s possession of the marihuana possession material in his

or took a over- of error is same. The

Shelby Camp EAST, Appellant,

The STATE of

June

Rehearing Denied Oct. Rehearing

Second Denied *2 have

find what witness would testify. Coun permitted he pages from sel offered certain numbered a purported to be statement what was trial, a former same facts on part made a of this record on not State, Tex.Cr.App., 402 S. peal. Vistal v. State, Tex.Cr. authority for the App., 379 S.W.2d are exception to the rule that a bill of objection to sustaining the State’s a propounded a questions to witness without showing of the answer of witness what been, presents nothing for would have view.

Appellant’s ground next testimony of the relates to a conducted concerning Officer Althoff test appellant’s home partner him and his at relative night following on the the homicide visibility ability recognize person in deceased had an automobile where Appel night preceding. been found on the any objection lant he waived testimony have had to Officer Althoff’s permitted (Al- Lattimer when he Officer testify same partner) thoff’s as to the Ochoa, Albert Armendariz, Jr., Jesus objection. Autry v. test and without results Paso, El appellant. for 735, is Tex.Cr.App., 264 au Boling, Paso, Barton Dist. El and thority the rule that the admission of Atty., Austin, Leon B. improper same not error if the evidence is the State. proven ob facts are other not jected to. Appellant’s ground of error is- third failing his- that the Court erred because motion for instructed verdict he contends was- State had introduced what malice; The offense is murder without exculpatory dis an statement and had not years. five

charged disproving its burden of question ground error is The statement in elicited with objection exclusion court of certain testi Fisher who ar out Officer mony upon from Officer the scene and went to the Alvarez. From coun rived who statement appears partner sel’s to the court his of deceased while assistance by appel such was an oral He stated that declaration made went into house. thirty-five lant after appellant yelling minutes the homicide he in his house overheard custody. yelled something and while was in We are “He follows: pass upon question wife; stealing called he thought she was whether met ges- the statement was a of res the car.” We are outset with tae, because nowhere in this record do we determination such statement of whether that a matter will designated has held the clerk to include excul- if exculpatory complaint

statement is not unless it not be pates. McGowan v. Tex.Cr.R. such matter sixty and Perez v. clerk not filed with the within A literal Tex.Cr.R. given.” after notice of *3 interpretation quoted of above the words the designation counsel filed no of Since that it appellant be that knew to included within the matters desired be prevent was her her his wife and the approved page record and since “stealing” the automobile. This 14, 1966, the appeal record on on December be permis- him refusing did in court not err thereafter. sion file additional record While is true that of Conerly State, Tex.Cr.App., v. fered in Edward evidence the of Putty presumably given at a trial appellant’s explana error, where he testified that Finding the reversible no tion thought was “He said that he was a she uniformly

car thief”, this held statement,

that where the accused offers the disprove OPINION is under obligation State no v. 167 Tex.Cr.R. 162, 397, and Marion v. RE- FOR MOTION APPELLANT’S ON Tex.Cr.App., 387 S.W.2d 56. HEARING ground of error DICE, Judge. #4 per lates refusing to the court’s order him in our erred Appellant that we insists tran mission to file additional record or consider refusing to in original opinion script. May given Notice of on com- IV, which he in of error # 27, before contained record us newa court’s refusal plained of the designation no written the matter to be of misconduct. alleged jury trial because of by Ar required included in the as is record 40.09, 2, ticle pro- Sec. Vernon’s Ann.C.C.P. records that the concedes He find, however, 14, We do that on December the motion hearing of ceedings on 1966, counsel the State re- appeal, record on in the not included proved “the “the foregoing pages” as of certio- writ issue its court to quests complete record in this cause.” record Such complete court directing rari approved by the court on December proceed- certifying such by record on ings to this court. upheld the copy opinion we The record a motion original contains no In our permis- order which formed basis of court’s record, because 6, 1967, it- February additional entered the order to file the sion matter to exten- self refers to motion for no written designation appel- made per- sion included therein been of time file brief and motion 2, su- 40.09, subd. lant, transcript. required Art. mission to file Such additional ap- file had record on pra, and the granted order motion and denied proved him. second. 40.09, 2, provides: Sec. di will not facts we such Under certiorari, to court, by writ the trial party may “Each file clerk a rect original correctly held that which we written matter for do do. refusing to in he did submission inclusion in the record. The failure of appel- Shuval, Hereford, Andrew 415 S. in Clewis v. conclusion Our J. accept the lant. by appellant, cited trial court’s filing of a entry and belated Austin, Leon findings passing in for the State. the decision confession under written Denno, 84 S.Ct. 378 U.S. Jackson applicable. is not here 12 L.Ed.2d dispo- correct

Remaining convinced original sub- made the case on sition was ; driving while intoxicated offense mission, rehearing is over- the motion for jail fine and a of $50.00. *4 is a direct from the order

This stating finding appellant guilty the Court be rendered that no final placed that thereon and probation. sole Elgin McLELLAND, Appellant, James overruling plea the court erred pleading Prior jeopardy. former to the The STATE information, timely plea filed his proof there- jeopardy of former and made at a on. He established that following had on the same information the occurred: attorney questioning

“(Appellant’s Mr. ‘Today you witness) state’s bev- had the smell alcoholic McLelland you think erage him. Last time I testified —’ County Judge) (the : Miller (The ‘Mr. you object?’ Attorney), going aren’t you ‘If want to introduce Mr. Miller: you make this, right, all should that’s introduction.’ some kind of will throw ‘This Court Court: re-trial. This is a mistrial. case out jury is dismissed.’ ‘Object.’ Appellant’s counsel: you are object, but ‘You The Court: retrial case is set for overruled. ”18.’ on October twice Clearly, the Con- in violation jeopardy placed in XIV, Consti- I, Section stitution. Texas, Ann.St.; Article Vernon’s tution of