*1 30 question presented order the effectiveness an sole County Relator contends that
contained in the Ector sentence. vague object. order its it is too and indefinite effect concurrently run with sentences County, reads: “Said sentence not to Texas, rendered in 20th Court District Wichita 13, 1949.” Nos. 9241 and 9242 on Oct. of this Relator relies several recent decisions 578, among being Rep. parte Epperson, them Ex 153 Texas “not 233 an which read 2d wherein we held that order S.W. heretofore received” to run concurrent with other sentence cumulating not effective as two sentences. Collier, Rep. parte
In Ex prior and concluded we reviewed number of decisions and the court where the contained the the cause order number sufficient. convict was sentenced was impressed contention We are not relator’s Here, language the statute. order must couched in the merely negatively states the court stated affirmatively. be done prayed
The relief for is denied. (Lefty)
B. F. Fowler State 27,306. January No. *2 Lubbock, appel- Broton, Broion, by for Burks & W. Clifford
lant. Austin, Attorney, Dice, for the state. Wesley State’s Judge. DAVIDSON, Burk, Lynn in alleged a S. of beer sale The information charging a count County, dry was also area. There a
Lubbock punishment assessed prior offense. The conviction for like jail. $2,000 in and one was a fine Eugene
Lynn undercover Burk House were S. and W. agents apprehend Liquor Board viola- of the Texas Control Liquor tions of the Texas Control Act.
According appel- testimony, to Burk’s he and House went to alleged information, and took lant’s residence on the date Appellant approached seats around a if in and asked table the room. “ ” they beer,” ‘yes.’ question replied, wanted “a to which Burk Thereupon, appellant got went to the icebox and cans of two beer, paid appellant which he served to them. Burk dollar one drinking this, they purchased the two cans of beer. After beer, they open. two more cans of did not These by two cans of beer offered in were evidence the state. House testimony, corroborated Burk especially in his as to
the sale of appellant. the beer
Appellant aas witness in his own behalf. alibi, His testimony. was that defense as shown other Exception Bill of that, closing argument, 8No. certifies in objected was to as refer- appellant’s ence to the failure as witness in own behalf. testimony, course of his the alibi witness stated place alleged did not live at the where the sale beer
had been Capitol made but lived at the Hotel. testimony, commenting upon stated
State’s jury: “Frankly, (Appellant named Lefty I don’t know whether (Lefty) B. referred in the information as F. Fowler Fowler) keeps over Lefty room the statement of facts as not, a bit of Capitol at the Hotel but it doesn’t make here —Lefty what difference the world because — get trying squirming out all we are see to Lefty charged today selling of beer is two cans those single it, not a a bit of to contradict there evidence bit.”
Appellant’s objection reference to was a P., his failure to and violative of Art. C. C. *3 argument, In his further said: state’s counsel get up you and men “You heard the evidence heard these get exactly happened. just You heard them there and tell buy; you that up they heard there and that made the also tell single controverting that piece this of evidence was offered not a single solitary made, not sale wasn’t bit.” Appellant’s objection that statement was to argument, counsel, further said: State’s in his “Gentlemen, part ? what is that we are to consider this other police primary purpose and the Court and the citizens everybody else, primary principle of Texas laws going stop we to were written on was to crime. And how are stop going give year? stop him a A doesn’t it? Are we to him, stop appeal it as far him. A thousand dollars we’ll doesn’t go. come we can served it out and we back as we We’ve controverting again say, single bit of I sell and there is Burk, Lefty Mr. evidence that the sale wasn’t thing.” single, solitary 710, Appellant’s objection violated P., C. was overruled. C. appellant’s objection
Thereupon, and in connection with the argument, previous to the counsel said: state’s “Gentlemen, 710 of the Code of I wouldn’t violate Article time, Procedure, was, I at to save Criminal if knew what you that there try get to show up neck, here I will my but made, introduced controverting single evidence bit of wasn’t make Doesn’t of beer. cans Lefty these two not sell — there, he Lefty lived the evidence is difference Donahoo, prostitute.” Mary living there argument was sustained. objection Appellant’s a studied reflect arguments counsel repeated of state’s These jury that argue part to the purpose his and determined witnesses, testimony of the appellant had not denied the only ones parties would be transaction for the of the beer a sale position there was know whether parties. two involved a contract between 710, C.C.P., mandate, is a from commenting upon state, prohibiting
counsel for the allusion to in his own be- the failure of an accused witness as and, 1889, where half. This has been the law of this state since question. applicable, has enforced this court without R. 180 S.W. 2d Chambless appears directly point to be here. brief,
In its the state the fact that the bill calls attention to exception complaining does own a witness and, by thereof, behalf reason insufficient. R. Texas Cr. *4 authority cited as for that contention. contention, supports case the and re- quires exception certify that the bill of that the accused did
testify, in preserve complaint order to of a review this court of state’s counsel was a reference to the failure We have decided case in the should be re-examined.
Prior 667, C.C.P., its amendment in read as follows: exceptions.
“Bill of defendant, by counsel, may “The himself or tender his of bill exceptions charge decision, opinion, court order or of the sign case; proceedings or other judge in and the such exceptions, prescribed suits, under the rules in civil decision, opinion, charge order that may order or re- be upon appeal.” vised
It will noted that requirement statute contained no nothing exception. as to the contents of It bills did more than provide regulated exception prescribed for bills of requisites approving followed in to be them. 667, C.C.P., only
Said provision was the in our Code touching exception Criminal Procedure bills of in criminal cases. statutory In the absence of direction from the as sufficiency court,
to the contents or of bills determination, from judicial prescribed time to time cer- prerequisites exception. Among tain pre- valid bill those requisites provided was that which it when was claimed of state’s counsel was reference to the failure thereby of the accused to was violative of Art. exception presenting bill of matter must con- fact, testify tain not, certificate that did witness in his own behalf trial case—and this, notwithstanding charge the fact that facts, parts statement of or other shown of the record that the defendant If the of ex- case. ception required did not contain the certificate the defend- ques- ant did not held insufficient tion for review. Legislature, Such was the and rule when 53rd 1953, by Chap. Regular thereof, 254 of the Acts Session
came on to amend Art. C.C.P. act, That pertinent, expressly provides: in so far as here complaint “Where the of State’s counsel about which is exception manifestly improper, bill of or violates mandatory statute, thereby injected some or some new fact necessary into the it shall not negative argu- invited, reply or in *5 any ment of defendant or facts which or his other argument complained may the of have been authorized. If such otherwise, exist, may by qualification matters require the trial court or exception any whereby reason the bill of to reflect argument complained of would not error.” be given and the may the statute to construction be No other the rule incorporated legislature but that therein intent of longer existing no referred to was theretofore above abrogated. thereby expressly was effect but was a instant of testify. appellant The man- to to the failure of
reference C.C.P., expressly prohibited datory provision of Art. which argument, thereby such was violated. argument, provides complaining that such an the act
In of negative necessary exception .... “it be that bill complained other facts which the been authorized.” argument complained of would not have violated witness the case. had the testified as legislature
But the let matter rest was not content to provisions quoted. further above It went statute expressly provided and argument that if facts exist which rendered the objectionable, subject complaint leveled to thereat, expressly require that the trial court authorized to exception reflect such facts.
If the had not intended that the rule was abrogated longer controlling required no which exception certify testify, that the defendant did where counsel was a reference is claimed provision just to absolutely meaningless. failure above mentioned would exist authorize the
No occasion exception require trial court in cases the bill of state that the defendant did when the bill sufficient, certify testify. he must did not escape rule no There is no from the conclusion abrogated by controlling state, longer in this has but mentioned, requires that, to be sufficient sub- court, a com- ject to the consideration of this plaining counsel was reference of state’s accused of the accused to must failure contrary Musgrove case, supra, which holds hereby expressly
36 argument improper counsel,
Because judgment cause reversed is remanded. dissenting.
WOODLEY, Judge, upon predicated order of Exception The reversal Bill of alleged No. 8 Hart, improper to the “relates of Mr. County Attorney.” Assistant procedural state, Under the by law of this adhered to this up court present time, order Appeals review to the Texas Court Criminal court, complete claimed error in trial must and in itself manifest the facts which show error. Resort to the record to complete required. is not long It has also been the rule statement of the
ground objection would suffice and it was essential objection upon the bill facts which the predicated actually State, Rep. existed. v. Cox 157 Texas Cr. 474; Rep. 91, 246 2d Martinez S.W. 157 Texas 246 633; Jur., 2d 4 p. S.W. Texas 293. Sec. These rules have been adhered to since the amendment by Legislature. 667 C.C.P. the 53rd Musgrove Rep. decision in by consideration, was the result of a careful all adopted theory by members of this now majority opinion. case we construed amendment of upon judge, placed C.C.P. and trial held that the burden by qualification to show or was in- otherwise vited reply or made in or complained other fact which the authorized, stated, have been alter re- the rule above holding quiring complete the bill to itself. The our effect of placed duty judge was that the amendment no the trial complete appellant by a bill for the addition of facts without which it was insufficient to error. The writer show believes holding is correct. It was the settled law of state at time this case was tried, approved, and at the time the bill of though a bill was deficient it showed counsel for state unless the defendant’s failure commented fact as a that the defendant disclosed consistently fol- case has been *7 ago. has It more than a decided since the case was lowed Texas vigorously (notably v. in McGill assailed 398). Rep. 658, 269 S.W. appeal, represent But able counsel who brief, question their do our question of In supra, nor it overruled. fact seek de- county attorney on the commented whether the assistant mentioned brief fendant’s failure to is not relied for therein reversal. interpretation If we act error our were Legislature Legislature amending 54th 53rd Art. 667 change authority session, now in and has undoubted requirements make a so as to bills court. matter to this before us sufficient regulating importance of fixed and laws written rules or recognized. procedure and criminal is well in both civil cases changes Any trials procedure in such should be limited to future preparation appeals. Believing that case should not be overruled control, judgment but should affirmed and that should be reversed, my respectfully and not I enter dissent. Roy
Lee Goss State 27,177. 1, 1954 No. December January
Rehearing Denied