Ex Parte Perez

428 S.W.2d 323

Tex. Crim. App.

1968

Check Treatment

Ex parte Raul PEREZ

No. 41277

Court of Criminal Appeals of Texas

May 8, 1968

323

given by the appellant prior to November 8, 1966.

The disputes, if any, as to whether the check was given in exchange for the automobile, and whether appellant had no good reason to believe the check would be paid upon presentation were resolved against appellant by the jury‘s verdict. The evidence supports that verdict. Further, we reject appellant‘s claim that a closed bank account is not sufficient to sustain an allegation of “for want of sufficient funds.” Appellant‘s first, third and fifth grounds of error are overruled.

Ownership may be alleged in either the person who owns the property or another person who has possession of the same. Article 21.08, Vernon‘s Ann.C.C.P. We deem the evidence sufficient to sustain the allegation that the automobile was the movable and personal property of South Park Motors. Further, such matter was submitted as an affirmative defense by the court‘s charge. The second ground of error is overruled.

Appellant‘s fourth ground of error is also overruled. It is observed that the indictment properly alleged the worthless instrument in the conjunctive. See

Jasper v. State, Tex.Cr.App., 403 S.W.2d 790. While three methods of committing the offense were alleged in the indictment, the state was only required to prove one to sustain a conviction.

Appellant‘s sixth ground of error is without merit and is overruled. While the indictment contains assertions unnecessary to alleging the offense of giving a worthless check, i. e., that the check was given in exchange for the automobile, it nevertheless quite properly charges that offense. Article 567b, V.A.P.C. (As amended Acts 1963, 58th Leg., p. 729, ch. 268).

The judgment is affirmed.

Ex parte [REDACTED]

484, 77 S.W.2d 877. See also 8 Tex.Juris. 2d, Bail and Recognizance, Sec. 18, p. 137.

Ex parte Thrash, supra, this Court said:

“The burden is upon the State to establish that the ‘proof is evident’ in order to defeat bail.
Ex parte Donohoe, 112 TexCr.R. 124, 14 S.W.2d 848;
Ex parte Readhimer, 123 Tex.Cr.R. 635, 60 S.W.2d 788, and
Ex parte Coward, 145 Tex.Cr.R. 593, 170 S.W.2d 754. The trial court has by denial of bail to this appellant construed the facts presented as showing a case of ‘proof evident.’ It is the duty of this Court to determine if the trial court was authorized to reach that conclusion.”

Murray J. Howze, Monahans, for petitioner.

Leon B. Douglas, State‘s Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from an order in a habeas corpus proceeding refusing appellant bail after indictment for murder with malice of his wife.

The Constitution of this State provides that all prisoners are entitled to bail except in capital cases, when the “proof is evident.” Art. I, Section 11.

“The term ‘proof is evident’ means the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that upon a hearing of the facts before the court a dispassionate jury would, upon such evidence, not only convict but would assess the death penalty.”

Ex parte Paul, Tex.Cr.App., 420 S.W.2d 956; See also ; ; ; .

In examining the record before us, we find a complete lack of any evidence surrounding the alleged offense of the murder of appellant‘s wife. The State offered only the testimony of the Sheriff of Reeves County who expressed the opinion that appellant should not be released on bond for his own protection and for the protection of other people. He stated that there had been “persistent rumors” that some people intended to kill the appellant if he got out, and “substantial information” that the appellant had threatened to kill some people if he were released. Such testimony does not discharge the State‘s burden of proof.

The indictment in question is attached to the record, but this likewise does not discharge the State‘s burden. “An indictment furnishes no proof that the accused is guilty of a capital crime, much less that he is guilty of a capital crime in which the proof is evident.” 8 Tex.Juris.2d, Bail and Recognizance, Sec. 21, p. 140, 141.

There was some evidence in the record to the effect that appellant had been previously charged with another murder offense occurring some six months earlier and that bail in that case had been set at $5,000. There is a transcription of the court reporter‘s notes attached to this record indicating that at a hearing the State did not oppose the appellant‘s motions for a change of venue in both cases and that such motions were granted.

In the absence of facts surrounding the offense charged and for which bail is sought, it is obvious that this Court cannot find that the State has sustained its burden of showing a case of “proof evident.”

After a careful consideration of the record before us, the brief filed, the judgment of the trial court denying bail is reversed and bail is granted in the sum of $25,000.

Ex parte [REDACTED]

CONCURRING OPINION

WOODLEY, Presiding Judge.

In the absence of any evidence having been introduced as to the murder or the facts surrounding the killing, I concur in the conclusion that the trial court erred in denying bail, and that bail should be granted in the sum of $25,000.00.

Billy Ray MAYS, Appellant, v. The STATE of Texas, Appellee.

No. 41274

Court of Criminal Appeals of Texas

May 29, 1968

325

Paul J. Chitwood, Dallas, for appellant.

Henry Wade, Dist. Atty., Charles Caperton, Arch Pardue, Ronald W. Chapman and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State‘s Atty., Austin, for the State.

OPINION

DICE, Judge.

The offense is robbery by assault; the punishment, twenty years.