Fisher v. State
511 S.W.2d 506
Tex. Crim. App.
1974
Check Treatment

*1 506

ishment to life under Article V.A.P.C. This rejected has Court such contention. State,

Head v. 419 (Tex.Cr. 375 S.W.2d App.1967). Appellant’s ground is of error

overruled.

Appellant’s pun contention that ishment is cruel is and unusual overruled. 63, V.A.P.C., applicable a case is State, type. of this Fobbs 468 v. S.W.2d (Tex.Cr.App.1971). The constitution ality upheld statute has against Court similar attacks. See Shaver State, (Tex.Cr.App. v. S.W.2d State, 1973). Rogers v. (Tex.Cr.App.1972), Flores v. 146 (Tex.Cr.App.1971). Appellant’s ground challenging error grant court’s failure motion an instructed is verdict overruled. We proof hold there was sufficient jury exposure to conclude that oc- park County,

curred in located Dallas Phillips Texas. v. (Tex.Cr.App.1970). judgment is affirmed.

Opinion approved by the Court. Fentry FISHER, Appellant,

Robert Texas, Appellee. The STATE of No. 48712. Appeals Criminal of Texas. July

507 speculative. is certainly too At not—it the we ask the this time instruct it and jury not consider further ask mistrial, Your Honor. for a “THE COURT: Overruled.” Appellant contends that the statements prosecutor of the amounted to unsworn testimony what wife would have said had been called a she as witness by This, appellant. claims, goes beyond permissible the the comment on failure call a material witness. Houston, appellant. Cutler, Appellant argues that unsworn state- John by ments a prosecutor possible a as to what C. Atty., Vance, Dist. S. Carol James witness would have related are inadmissi- Attys., Driscoll, Dist. Asst. and Brough Vic hearsay. ble Atty., Vollers, State’s Houston, D. and Jim Austin, for the State. Many support cases the State’s argument to comment in de on the

OPINION competent fendant’s failure to call State, material v. E.g., witnesses. Winkle DAVIS, Commissioner. Tex.Cr.App., 891; Bolden v. S.W.2d State, 418; Tex.Cr.App., 504 S.W.2d Appeal is taken from a conviction State, Rodgers Tex.Cr.App., v. 486 S.W.2d murder. Punishment intent to assault with 794; State, Tex.Cr.App., Simon v. 406 S. years. jury at three was assessed 460, denied, 968, W.2d cert. 87 S. U.S. his undisputed appellant shot It that is 1054, (1967). Ct. 18 L.Ed.2d 123 When Appellant relied common-law wife’s sister. wife of the accused is fact witness to on the defense accident. as alleged offense is true in instant case, may the State comment the failure on erred Appellant the court as wit of the defendant to call his wife prosecutor to comment permitting the State, Tex.Cr.App., ness. White 487 S. v. call his argument appellant’s failure to on 104; State, Tex.Cr.App., W.2d Ferrell v. wife as witness. 901; State, Tex.Cr. S.W.2d Wood v. argument on closing During the State’s 896; State, App., Urteago v. prosecutor appel- guilt the commented 133; Puri Tex.Cr.R. a witness lant’s as failure to call wife foy State, 163 293 S.W. v. Tex.Cr.R. as follows: re prosecutor may 2d not 663. While missing late his version of the witness’ And “MR. DRISCOLL [Prosecutor]: testimony,1 impermissible it is not for the it reason she wasn’t called is because argument State’s to include an inference her was not an accident. He knew testi- testimony that the absent would have go damaging, as it would mony would damaging. both material and Simon v. you at to tell what his state mind was State, supra. possibly what he— prosecutor instant [Appellant’s In the case the “MR. CUTLER Coun- object testifying testimony did not state what the witness’ Judge, we to him : sel] say. permissible as she is would be. It was for him to to what would And that 581; supra. Tex.Cr.App., v. Simon Minter 174,283 conclude from evidence that the shoot- Cause Number in this Honorable ing was not an accident. Court for the offense of A murder.” entry docket sheet reflects such motion Appellant’s wife was the scene at the September 8, was denied on 1972. We time of the could shooting. The State find proof neither nor averment as to her call as witness. placed when *3 for logical Vernon’s was Ann.C.C.P. It instant offense. prosecutor to infer that the reason for appellant’s Appellant’s failure to call her was that pronounced sentence was prior 27, testimony and dam- August 1973, her would material to when the amend 42.03, ment aging. to Article V.A.C.C.P. became Thus, the effective. of this decision No error is shown. in Curlin v. Tex.Cr.App., 505 S. Curlin, is controlling. W.2d 889 In re- it Appellant court erred in was contends the stated: fusing appellant’s to credit sentence with

presentence jail time. 42.03, “Article V.A.C.C.P. the time at of appellant’s sentencing trial

Appellant’s in sentencing initial this [prior August 27, gave to the trial April 5, cause on (appellant was was 1963] judge complete granting discretion in April resentenced on to correct spent credit for in on sentence time imposed). of- minimum term Proof jail prior ap to sentencing. Therefore, way exception fered a bill reflects of of pellant is constitutionally not to following testimony entitled appellant: of credit for his jail time date between you “Q. prior And trial to have been of his . . arrest . and the date of on bond this bail case ? Freeman, sentencing. parte . . . Ex (Tex.Cr.App.1972); case, have, “A. For this I but— Vessels v. (Tex. “Q. you When were to returned Henderson, Cr.App.1971); Gremillion v. jail? Cir.1970).” (5th (Fo 425 F.2d 1293 otno omitted; emphasis supplied.) tes January “A. the 18th. “Q. year? Of what By way supplemental of brief ’72, Court, appellant filed with this “A. denying in

that the statements the court of jail appel amounted to a of “chilling” time “Q. jail You in on have been this right lant’s that appeal to such denial case and another case of You murder. imposed punish appellant was se to more jail have been in on all three these verely gave appeal. because he notice January, cases since 1972? question Because of the constitutional raised, in the the same will be considered “A. Yes. I have in jail have. I justice. interest of since then.” jail jail records “date in” as reflect sentencing, After appellant’s initial 26, 1972, January but fails to show which following exchange occurred: placed of the offenses in “THE COURT: You have for on this date. appeal. your right of You understand A personal August motion filed bond appeal. 28, 1972, appears in re- the record and previously [Appellant’s cites CUTLER Coun- that “was “MR. j in personal case, say has been ail number this that : I he bond in but this sel] case, since bond indicted of months ever was removed when he was State, Tex.Cr.App., 501 S.W.2d burn v. you went Isn’t that when case started. said, Colburn, this Court In 680. jail? to increase trial court could . up take that I will “THE COURT: he de punishment because talking about you are with later. You re order from the Court appeal to sired jail? his time giving credit with him Cleaveland probation.” See voking 769; Val State, Tex.Cr.App., 507 S.W.2d spent he has Time “MR. CUTLER: State, Tex.Cr.App., dez v. yes, jail, sir. pronounced in sentence was While you I talk to “THE will COURT: date effective prior to the instant case that later. about 27, 1973) amendment of the (August except want CUTLER: We “MR. (requiring V.A.C.C.P. give no- ruling Court and to the of the credit judges defendants give *4 appeal the of Criminal tice of to Court jail prior sentencing) to spent in Austin, except to Appeals, Texas. We sentencing was prior time to jail credit for judgment of the Court. the sentence and judge, trial within the discretion of the such exercise of process prohibited due the so, has been If time he THE COURT: judge in a man- by a trial such discretion jail in will be denied.” to upon right the place penalty ner as to correcting subsequent hearing At a appeal. appellant’s appellant’s counsel sentence only to the failure of Error relates again requested presentencing credit for time appellant trial with court to credit jail sen- following imposition of time prior to sen- spent jail this in in cause again court denied credit tence. The noted, the record tencing. As heretofore appellant gave appeal. notice of regard- before us is in a state of confusion request jail time When the for credit is affirmed ing judgment such time. The appel- was first made the advised court court credit with to the trial to directions lant’s counsel that this matter would be jail in this in appellant spent with time thereafter, up Immediately taken later. prior sentencing. cause to appeal appellant’s gave of counsel notice Opinion approved by the Court. said, so, he has been and the court “If time jail in un- will be denied.” The clear and import

mistakable the court’s statement DOUGLAS, of Judge (dissenting). being is that denied credit in the instant question presented The jail elected to spent for time in because he employed the trial court case is whether give appeal. notice of as to deter a manner his discretion such ap- right appellant’s of exercise of his Supreme The United has States Court the trial peal. This is not a case in which penalizing held that the exercise a stat- of if an higher sentence judge threatened a utory right appeal is of due to a violation not a case appeal It is were taken. process. “price” an put cannot States penalty was substituted which heavier appeal right appeal exercise of of —-the appeal was sentence after for the initial must “free and Car- unfettered.” North judge the trial instant case made. In the Pearce, olina v. 395 U.S. 89 S.Ct. 42.03, V.A.C.C. by was authorized (1969). 23 L.Ed.2d 656 time, P., to exercise in effect at that jail presentence reasoning granting discretion This followed the of sentencing. When reforming a credit at the time Pearce in a recent decision of judge jail requested, first imposition higher trial sen time was court’s delay exercising his discretion. appeal following the chose to tence when was taken Therefore, jail time had been no credit for court’s initial reduction of sentence. Col given appeal juncture. at this- Notice of given.

was then of credit for denial jail appeal. The time followed notice of nothing away court from took prior given since not been no- credit had to appeal. tice of statement court’s While gives appellant’s rise to the inference

request may grant- have been appeal

ed notice not been given, had such to a a statement does not amount

“chilling” appeal un- der presented. the circumstances here

The discretion under statute was granted court, appellate trial

court. *5 parte Daniel

Ex GALLEGOS.

No. 48683. Appeals Criminal of Texas. July

Jerry Johnson, Angelo, peti- M. San tioner. Hart,

Royal Atty., Angelo, Dist. San Vollers, Austin, Atty., D. State’s Jim the State.

OPINION

ONION, Presiding Judge. post-conviction application This is a corpus brought by writ of habeas an in- Department mate of the of Corrections un- provisions der the of Article Ver- non’s parte Young, Ex Ann.C.C.P. See (Tex.Cr.App.1967). S.W.2d 824 corpus application

In his habeas filed in court, convicting the 119th Judicial Court, petitioner District in ef- fect, among things, other that he unknow-