*1 Burns, Dippel, Hous- Sears & C. Charles
ton, respondents. FOR OF
ON APPLICATION WRIT
ERROR
PER CURIAM. case, by the trial was dismissed
This plaintiff prosecution, and
court for want of the Court
sued of error from out writ court Appeals.
Civil The intermediate trial court judgment
reversed the of the Tex.Civ.App., the cause. remanded opinion the rec- In our S.W.2d plaintiff
ord affirmatively shows attorney proper notice given were not appli-
prior to dismissal the case. refused, re- for writ of error is no
cation error,
vesible not to be un- we are approving holding
derstood hold, Appeals,
Court of Civil if it did so may properly case be dismissed prosecution want of unless it has first
been set for or that failure to
set for trial affects showing that must
be made to obtain a reversal when
order of subjected dismissal is ato direct by appeal
attack or writ of error. FOSTER, Appellant,
Felix STATE of
No. 45296. Appeals
Court of Criminal of Texas.
July 17, 1973.
peal 44.10, permissible. is Art. 44.09 and Ann.C.C.P.; Vernon’s State, v. 44S McGee (Tex.Cr.App.1969). S.W.2d 187 Appellant, reply in the State’s motion, acknowledged has that a dismissal permitted, is but has moved this Court by given exercise the discretion it Art. 44.- 09, V.A.C.C.P., punish in where the cases ment is assessed either death confine or ment for life and has the defendant been recaptured thirty days within after es cape. assessed, light In penalty of the this will Court overrule the and State’s motion will appeal consider the on its merits. State, 269, Steese 170 340 S. Tex.Cr.R. (1960). W.2d 49 brief, appellant In his grounds raises two of challenge error. He the suffi- does not ciency support of the evidence to the con- viction. Redmond, Thornton, Albert Richard G. error, ground appel In his first of (on Appeal appellant. only), Galveston for in lant contends that the trial court erred Damiani, Jr., Atty. Dist. and R. L. Jules overruling his motion for continuance Wilson, Galveston, Atty., Asst. Dist. Jim day which In was filed on the of trial. Vollers, Atty., D. and Robert A. State’s motion, appellant alleged the of Huttash, Austin, Atty., Asst. State’s witness, absence Emmett of material Sul
the State. livan. He further that the testimo
ny of the would be material in witness regard voluntary nature to the issue of OPINION po of an oral statement which he made to ROBERTS, Ac lice officers at the time of his arrest. Judge. motion, cording allegations Appellant was convicted of offense beating ap the witness observed a which with intent to commit theft. pellant had received from punishment His was under Arti- enhanced the time of arrest. 63, Ann.P.C., cle Vernon’s motion, appellant In the states that his was assessed a life sentence. requested, the date trial counsel on 14, (June subpoena issue for considering 1971), the merits of Before appeal, missing Appellant witness. upon we must first rule further op- first dismiss has been stated that this done at the State’s motion to which was by portunity, filed in as the was not discov- this Court. An affidavit witness 12, Saturday, County ered until the preceding sheriff of is attached to Galveston June motion, Appellant Monday, in 1971. states that which the sheriff states June 5, 14, 1971, opportunity April first he had escaped custody was the from on process. April 7, At the on recaptured was obtain on trial, appellant’s counsel currently custody. motion for new and is The record first learned the exis- February testified that he was filed in this Court Therefore, ap- con- the witness Sullivan while the dismissal of the tence of note that an accused’s argument, we the case on State’s ducting investigation because continuance Monday first trial Saturday prior generally a witness is absence of witness learned at that time did, subject ground on the to attack missing witness of town. The out merely be cumula testimony sought would fact, subpoena in appear answer to tive. Carter v. week after middle of the (Tex.Cr.App.1896); Suber served. been stating just that he had *3 the at the Sullivan testified (1921). from trial and stated that motion for new have should The motion for continuance above, the directly he observed his window reason, judg- the granted. that been For Ap- appellant. police apprehend officers and the cause remanded. ment is reversed Sul- pellant was the house and underneath appel- livan testified that the officers told they him
lant to come or would blow out DOUGLAS, Judge (dissenting). out, they began kicking him when and that they underneath the got him out from for appeal This is an from a conviction that al- house. further testified Sullivan com- the with to offense of intent though directly vantage point his was above prior felony mit convictions Two theft. apprehended, spot appellant was the where capital alleged than were for offenses less any warnings he administered never heard under Article V.A.P. enhancement say, “I appellant. He did hear someone at life. was assessed punishment C. The rights,” my by have someone stat- followed The approximate- reflects that at ing, record rights.” “We have our Sullivan then m., somebody ly City of police 2:10 the hollering, heard “like a. officers of someone the car near getting parked was Galveston saw Foster’s hit.” drug Waylen Three store of Crawford. only The appellant witness besides who the store. officers then saw Foster inside jury testified concerning before the the al- the Foster came outside and went around leged beating twelve-year-old a boy was car building police corner the near the who lived next door to the house where holding paper a sack in his hand. When appellant was His testimony arrested. was car, and ran. patrol he saw he turned appellant by was kicked the officers Approximately the offi- three hours later he being anything didn’t remember a some cers found him underneath house appellant said to pulled he was once out offi- drug three The from store. doors from underneath house. pill containing cers bottle found a $3.81 him, pocket. After a conversation A crucial issue in this cause was wheth- they and six large a screwdriver recovered appellant’s er or not oral confession which have drugs bottles which were shown to arresting officer testified A burglarized store. been taken from arrest, made at the freely time of and from inside of fingerprint latent voluntarily given. de- left glass the store matched door of nied that such a beating place. took Sulli- ring finger appellant. van’s testimony was much more detailed than young boy’s add- would have Waylen the nar- testified that Crawford weight appellant’s ed version of the and that cotics were locked drawers surrounding facts his arrest. approximately a. 1:00 store was locked he returned to the store
m. When open pried had Appellant’s counsel, night, front doors been appointed 18 draw- The narcotics days trial, proper before dili without consent. has shown motion, open bottles gence pried and seven seeking this mo ers had been first pill missing, as drugs tion well To were continuance. answer bottle which contained The officers mum called Mark as a witness. $3.81. Smith brought the store that appear he not This did Nor does it do. night and dif- any Saturday returned the containers of that counsel made effort on ferent drugs kinds of which had the store subpoenaed have Sullivan when he knew code Monday marked on them to Crawford. One that he was scheduled for trial on container was not found. morning. upon The burden is the defend- ant establish diligence exercise of majority reverses the conviction of an for a continu- holding trial remands for new Ann.P.C.2d, ance. Branch’s Section improperly appellant’s trial court denied page Appellant has not met that bur- he motion in order that for continuance den. might attack the voluntariness of an oral Assuming arguendo that Emmett Sulli- recovery confession which led to the van had testified as in the motion opin drugs. screwdriver In their and the testimony for new such would they point ion an accused’s first out that *4 changed have If result. after because of for continuance of the trial court testimony Sullivan generally absence of a is not sub witness involuntary had ruled the oral confession ject ground to attack on the that the testi and the thereof inadmissible there fruits merely mony sought would be cumulative ample support appel- was still evidence to 403, State, and cite Carter v. police lant’s Three conviction. State, 378, 35 Tex. S.W. Suber v. 88 appellant night saw inside the store on the 416, Cr.R. 227 314. S.W. burglarized pill it was and a bottle contain- However, the majority has failed rec- ing proven to have come from $3.81 ognize diligence part the lack of on the at the appellant’s pocket store was found in presence counsel to obtain the this wit- Additionally, a latent time of arrest. his In ness. of his motion contin- finger fingerprint matching ring the left uance counsel for testified that was found on the inside of gone he had residence of one Mark glass door of the invol- store. Saturday, Smith and Emmett on Sullivan untary produced six bottles oral confession to talk them about screwdriver, drugs large and a June various surrounding appellant’s events arrest on sustain evidence which was not “needed to evening He of October 1970. testi- appellant’s conviction. fied that Mark Smith informed him that roommate,
both gist he and Emmett as is Sulli- offense of van, police per- had in present entry observed arrest is the intent case with hiding son who was under the where to commit theft. one is nighttime house When they living were and that im- building he returned seen inside a not his own and mediately consent, presumed to bed. that without the it also stated owner’s is Smith his roommate had him later told that he was there the intent to com- State, they Tex.Cr.App., had beaten the man had mit theft. Lee arrest- State, 851; ed. He told Tex. also counsel Sullivan was S.W.2d Leaderbrand v. Cr.App., out of town and would not return two the show- 557. With S.W.2d why entry by showing ing weeks. There is he for his no of lack of consent attempt parties proof did he along these with the contact Crawford hours, early morning appears building earlier It that he had in the week. investigated proved. the area the offense was as he did call Cecelio Robles, Sr., Robles, Jr., and Cecelio who Therefore, I would hold that denial of also in the resided same area. an motion for continuance was not
It would seem that counsel in the exercise abuse of the failure discretion view of proper diligence diligence would at a mini- of the motion to due in se- have show absent curing presence of the witness adduced
and failure of evidence testimony if present,
trial to show result. produced a different
would have 474, 266 Tex.Cr.R. Weaver v.
See stated, judgment
For should reasons
be affirmed.
MORRISON, J., concurs.
George COOK, Appellant,
The STATE of *5 KNOX, Appellant,
Brandon
v. Texas, Appellee. STATE KNOX, Appellant,
Dwayne
v. Texas, Appellee.
The STATE
Fay KNOX, Appellant, Texas, Appellee. The STATE Austin, appellants. Sager, Clayton & SCHULTZ, Appellant, Donna J. Smith, Atty., Larry Lad- Robert O. Dist. Vollers, en, Atty., D. Asst. State’s Dist. Jim Huttash, Atty. A. Asst. State’s and Robert The STATE Atty., Austin, State. thru 46523. Nos. 46519 Appeals of Texas. Court of Criminal OPINION July 17, 1973.
GREEN, Commissioner. Knox, George Cook, Brandon Appellants Knox, Knox, Fay and Donna Dwayne J. by indictment charged jointly Schultz were drug, narcotic unlawfully possessing jury, to-wit, Each waived marihuana. tried before and was plead guilty, found Each was joint in a trial. court