Garza v. State

85 205, (1940); Collins, error relat- Ryan points 440 496 S.W.2d of raises other Mooney 1973, writ n. Harlin (Tex.Civ.App. Tyler 210 ref’d contract. Since to breach of ing — e.). rule, pro- general r. As a the limitation claims her contract abandoned period begins to run a cause only, when of action these for fraud with her claim ceeded Crosland, accrues. Atkins v. 417 S.W.2d the court. before points properly are 150, (Tex.1967). 152 case of In the actiona overruled. Accordingly, they are fraud, however, begins ble run limitation judgment ap- of civil of when the fraud discovered or from the of peals judgment is reversed and the might time the fraud have been discovered trial court affirmed. through diligence. E.g., reasonable Gaddis Smith, 577, (Tex.1967); 417 S.W.2d 579 Anderson, 608, Wise v. 163 Tex. 359 S.W.2d

876, (1962); 879 Sipper, Sherman v. 137 85, 319, (1941).

Tex. 152 S.W.2d 321 A charged with constructive notice knowledge actual that could have acquired by examining public

been records. When evidence of fraud be disclosed GARZA, Appellant, Daniel public examination records this court has held begin limitations will to run from the time the fraud have could been discov Texas, Appellee. The STATE ordinary diligence. ered the exercise of 85, Sipper, Sherman v. Tex. 137 152 S.W.2d No. 58517. 319, (1941). 321 Texas, Appeals Court Criminal Constructive notice law creates No. Panel 2. presumption irrebuttable no actual 692, Pratt, tice. See Hexter 30, Jan. (Tex.Comm’n App.1928, judgmt 693 adopt 23, Rehearing Sept. On ed); University State Bank v. Gifford-Hill 28, 1981. Rehearing Denied Oct. 561, Corp., (Tex. Concrete 1968, Civ.App. Worth writ ref’d n. r. —Fort e.). proceedings Probate are in rem actions persons

and bind all set in the unless aside provided by

manner law. Ladehoff v. Lade

hoff, 436 334, (Tex.1968); 336-37 (Vernon

see 1980). Tex.Prob.Code Ann. 93§

Persons interested an estate admitted to

probate charged are with notice of the con probate

tents of the records. Salas v. Mun

dy, Tex.Civ.App. 125 S.W.

(Amarillo ref’d). writ Examination probate records in ease have this would Henry

disclosed English will of Thus, bequest

made no to Dulan Harlin. began

the statute limitations to run probate.

when the will was admitted to file

Harlin did not this lawsuit until four Eng

years Henry and seven months after probate.

lish’s will was We admitted

hold, law, as a matter of that Harlin’s law damages fraud upon

suit based is barred year the two statute limitations. Jr., appel- Phillips, Angleton, for

Jimmy lant. Vance, Atty., John former Dist.

Carol S. Jr., Holmes, A. Hart- Atty., Dist. Calvin B. Cobb, Attys., Dist. Richard Asst. mann and Houston, Huttash, Atty., Robert Austin, the for State. ODOM, TOM DAVIS

Before G. CLINTON, JJ.

OPINION CLINTON, Judge. appeal

This is an from a conviction delivery wherein of heroin the offense at appellant’s punishment jury the assessed Department the confinement in Texas thirty-five years. a term Corrections for presents grounds ten Appellant court that the trial for our consideration: quash failing grant to motion to erred in his indictment; timely requested that a the was erro- charge circumstantial evidence refused; incor- that trial court neously law applied the to the facts rectly charging jury; that case refusing permit to court erred to his for new trial jurors to call on motion misconduct; purported jury demonstrate failing to ex- trial court erred in that timely re- upon juror cuse Clark cause severance quest; that a overruled; that the trial erroneously refusing discovery erred in allow ap- tape recording between inspection of a agents; pellant and undercover prosecutor engaged in improper argument might facts the State seek to hypothetically during trial; punishment establish,” phase Drumm v. support evidence is (Tex.Cr.App.1977), insufficient but his motion verdict; was a exception may specific insist on alle “a prosecutorial when,

victim of vindictiveness gation of what the rely upon State will refusing after plead possession her- convict,” Amaya v. oin, he was reindicted on the more serious (Tex.Cr.App.1977). Also Cruise charge of delivery of We find heroin. State, supra, at 405.5 dispositive first appeal. of this It here, delivery of a sub- So controlled granted will be judgment and the reversed. accomplished stance be least enough para- indictment is simple quite three different actual situations: — it, phrasing that appellant did deliver her- transfer, constructive transfer the en- and oin to Jerry Powell. “deliver” But now then, so, tirely offer to sell. More distinct carries several connotations.1 prior Court than in the decisions of the above, discussed our needed In his motion to quash appellant asserted sought. Drumm, Amaya notice he Unlike allegations put that its to “are insufficient Cruise, allegation where some a fac- the Defendant type on of what notice for, was tual matter called what delivery rely prove the state to will its legal wanted State to interline was its impossible . accusation . . it . .. for [and is] just theory delivery which kind of was against proof the Defendant to know what by going prove. to be shown the facts it did prepare he must his defense.” alleges facially the indictment that While State, As we characterized v. it in Cruise committed, against offense law was 403, 587 S.W.2d (Tex.Cr.App.1979), 404 this controlled substance case it does complaint, “This having properly been as- give necessary show on its face facts to serted,2 calls question adequacy into precisely charged notice of what he is with requisite the constitutional of notice to the a subsequent prosecution nor to for the bar and, therefore, requires accused our consid- Terry State, same v. 471 offense. perspective.” eration of it from his Recent 848, (Tex.Cr.App.1971); v. 852 Haecker adequate cases have considered the issue State, 920 (Tex.Cr.App.1978); 571 S.W.2d when by notice raised a motion. Their com- State, State, supra; v. Amaya Cruise v. mon thread is underlying that when the State, supra; v. cf. Pollard denouncing prescribes, supra; statute Drumm the offense State, 11, permits on, (Tex.Cr.App. v. 13 conviction more than one set circumstances, 1978). “the accused not re- Ground of error one must be sus quired anticipate to all any and variant tained. 575, 4476-15, 1917); 1.02(8), (Tex.Cr.App. 1. Defined 198 577 see also § Article V.A. S.W. C.S., (Tex.Cr. it Amaya means “the actual or constructive trans- 387 fer from one App.1977). another of controlled substance ... includes an offer to sell a [and] (All emphasis sup- controlled substance.” prior particular suspension of 3. The plied throughout by opinion the writer of this required provide license was ade- driver’s quate indicated.) unless otherwise driving to one accused of while notice suspended. license As to the contention the motion untimely filed, we note that Article of welfare fraud is 4. One accused entitled V.A.C.C.P., provides any matter of form particular willfully of the content of the notice any be amended at time before announce- prove. false statement the State intends merits, ready ment of upon for trial 28.09, id,, contemplates Article that the defect robbery by Charged with the offense of by will be cured and the trial shall amendment bodily injury, causing an accused must serious proceed upon the amended indictment— precise manner which be informed being amendment immediate interlineation bodily injury. caused State claims permissible, Fiores v. 82 Tex.Cr.R.

89 223. Never- grounds of the other Several complete theless, exception must be a bill of upon problem arise from the same by its must stand or fall within itself and likely to occur.6 retrial are not State, supra. allegations. Herrin own the indict- judgment The is reversed and any error plainly set out bill must ment is ordered dismissed. Herrin for review. sought preserved to be court en banc. Before the be- exceptions supra. The bill quash the motion to fore contains no us MOTION OPINION ON STATE’S any not even contain It does indictment. FOR REHEARING quash. to a motion specific reference noth- presents exceptions The instant bill of DAVIS, Judge. TOM G. McClelland ing review. See delivery of Appeal from conviction for (motion to Tex.Cr.App., 389 S.W.2d punishment at 35 heroin. The assessed exceptions bill of attached to a quash not panel years. Upon original submission the nothing incorporated nor reference — and dismissed the reversed the conviction State, 229 review); Andres v. presented holding indictment the trial court (bill exceptions 89 Tex.Cr.R. S.W. denying appellant’s motion to erred overruling action complaining of court’s quash specify the indictment for failure to be con- quash indictment cannot motion to “delivery.”1 manner of fails to show sidered where record rehearing In its motion for the State filed). quash was appellant filed no motion to contends that mo us contains no The record before Appellant was tried quash the indictment. appel While quash the indictment. tion to Ferguson. jointly with codefendant Aaron on two objections to the record filed lant appellant represented by At the was 40.09, to Art. pursuant separate occasions Ferguson Honorable John J. Herrera and V.A.C.C.P., objections these none of Sec. Jimmy represented by the Honorable quash motion to omission of a relate to the Phillips, Appellant timely filed a bill of Jr. State, v. Tex.Cr. Lynch In the indictment. exception averring inter alia that the trial 740 we stated: App., 502 S.W.2d “[W]here “that granted appellant’s court had from the record of material the absence Appeal, any objection of purposes the non-objection oversight or by occasioned the Defendant, by Attorney made the for the accused, held generally been of it has the Ferguson, through pre- Aaron D. whether record has been any error in the trial or trial motions and whether in the (on rehear at 741 motion for waived.” Id. objections during form formal of motions or State, 573 Paige Tex.Cr.App., ing). v. See the course of trial ... taken as if the [be] 16; State, Tex.Cr.App., v. Stockton S.W.2d Defendant, Garza, attorney Daniel or his 69; State, Tex.Cr. Johnson v. 487 S.W.2d ” objections such motions. .. . had made brief, appel In his App., 466 744. S.W.2d upon by The bill was not acted the trial appellate record us to the lant has directed court. copy of the motion for a of his codefendant exception Ferguson timely A filed bill of indictment. See quash the State, 1980). deemed upon (Tex.Cr.App. acted the trial court 622 S.W.2d 846 approved qualification. without Art. We to review the records of decline State, V.A.C.C.P.; 6(a), see Herrin v. con support Sec. another case to find 27; Tex.Cr.App., 525 Dickhaut v. appeal. in this Parker tentions raised See see, g., guilt party; e. as a charge his establish on circumstantial 6. As to the failure State, (Tex.Cr. evidence, legal 320 what McBride v. since we cannot know for 1972). theory option, App. State will exercise its we the merely in invite attention to the doctrine that V.A.C.S., structing parties 1.02(8), 4476-15, on the of is not sufficient law defines Sec. Art. 1. rights protect delivery of an accused if circum of constructive transfer an actual or evidence is relied on the State to stantial substance. offer to sell a controlled or an 90 151 heroin, of left the officers and 6; State, Tex.Cr.App., 542

n. Salinas reentered the motel. The re- (“the general rule is S.W.2d 864 gave Agent turned a short time later and go to the rec appellate court cannot package containing Powell a small a sub- of purpose of case for the ord another stance Powell believed to be heroin. This considering testimony not shown in the rec package sample was a delivered in contem- it.”); ord of the ease before Hale v. plation a purchase approximately 637; Tex.Cr.App., 509 S.W.2d Jones v. w. being negotiated ounces of heroin by the 937; Tex.Cr.App., 478 S.W.2d Dona parties.2 Agent Powell testified that he hue v. 277 S.W. 102 Tex.Cr.R. placed package pocket in the of his counsel, (agreement approved by trousers, tri custody and maintained con- court, al testimony from one ease be package following trol of the until considered as in record of second case will morning when it was delivered to the De- be disregarded by Ap Court of Criminal partment Safety Laboratory. of Public A peals). Nothing presented for revie chemist employed by Department Safety package Public testified that ground In his ninth appel of error grams twenty-nine per contained “3.73 challenges lant the sufficiency of the evi (29%) cent heroin.” We find the evidence support dence to Initially conviction. we support sufficient to conviction for the “ac- note that this Court must examine the evi tual proscribed transfer” of heroin as light dence in the most favorable to the Howery aforementioned statutes. See jury verdict. judge is the exclusive State, Tex.Cr.App., facts, witnesses, credibility Ground of error number nine is without weight to be testimony. g., afforded E. merit. Miller v. Tex.Cr.App., 566 S.W.2d appel his second failing lant contends the trial court erred 4476-15, V.A.C.S., 4.03(a), Art. pro- Sec. charge on the law circum pertinent part vides in that “a com- stantial evidence. When there is direct evi mits an offense if he knowingly or inten- proven, dence the main fact to be a tionally ... delivers ... a controlled sub- charge on circumstantial evidence is not Penalty stance listed in Group 3, or 4.” required. See Cadd Heroin is Penalty listed in Group and 736; Bates v. Tex.Cr. delivery of heroin is felony classified as a 121; App., 587 S.W.2d Powell v. Tex. degree. the first 4.02(b)(2)(K) id. See Secs. Cr.App., testimony 502 S.W.2d 705. The 4.03(b)(1). and “Delivery” statutorily is summarized above constitutes direct evi pertinent in part defined as “the actual or delivery dence of Barrera v. heroin. See constructive transfer from one to State, Tex.Cr.App., 491 879. Cf. S.W.2d substance, another of a controlled whether charge supra. Powell v. A on cir agency relationship.” or not there is an Id. required. cumstantial was not 1.02(8). evidence Sec. Appellant’s ground second of error is over Jerry evidence shows that Powell ruled. agent was a employed by narcotics the De- In partment 25,1975 ground appellant his sixth of error Safety Public on April —the date of the contends that offense. Powell the trial court abused its dis- testified failing that he and cretion in police grant Ferguson’s another undercover to mo- offi- cer, Bush, Don posing Appellant were tion sever. buy- heroin maintains he ers. Ferguson separate The two appellant officers met on a were tried for of- parking motel fenses, joint lot in County. Harris Fol- authorized trial was not lowing a purchase 36.09, concerning discussion under Art. V.A.C.C.P. ensuing

2. Examination of evidence unnecessary disposition events of this ground of error. twenty-one per cent grams .. . at 485.64 Appellant no motion to sever filed heroin,” respectively. trial; (21%) the first complaint this is raised for to Art. appeal. pursuant time on Severance officers, Thus, appellant met with right but supra, is not a matter of heroin, retrieved and a sale of discussed rests within the sound discretion of the trial sample of the merchandise delivered a State, Tex.Cr.App., 449 court. Robinson v. room officers to the inspection, led the 239. Absent a motion for severance S.W.2d re- completed, were negotiations where the showing prejudice or a there is no error during negotiation, ac- room mained in the more consolidating the trial of two or to their car officers back companied the 240; at Beeson v. defendants. Id. was exchanged, and money to be see the Tex.Cr.App., 422 S.W.2d the actual We hold that then arrested. sub- sample of heroin and the delivery of a appellant’s If it be contention that grew motel room sequent meeting in the authority the trial court was without transaction. Joint trial out of the same consolidate, argu find no merit in such we 36.09,supra; no abuse of by Art. authorized 36.09, supra, provides perti ment. Art. trial court is shown. by the discretion who part: nent “Two or more defendants six is overruled. of error number Ground jointly separately are or indicted or com his third plained against any for the same or offense in not that the trial court erred contends growing offense out of the same transac instructing facts in applying the law to the be, court, tion in the discretion of the of the contention is jury. The thrust jointly separately tried more as to one or erroneously failed the trial court defendants; charged If the offense ...” parties to the facts. apply the law of against appellant Ferguson did not re transaction, late to the same it was State, Tex.Cr.App., 568 In Romo v. within the trial court’s discretion to order held: 298 we joint objection. trial over Mitch Ex Parte defendant, if where a “In circumstances ell, 608 all, party, as a the court guilty guilty parties properly apply the law should delivering The evidence shows that after case, the failure facts of the but to the Powell, Agent “sample” of heroin to unless there not reversible error do so is police to a led the two officers objection to timely and sufficient motel room where he introduced the offi- requested specially or a charge court’s Ferguson cers to and another man. Once timely filed.” charge is negotiated agree- the room the officers nothing in the instant There is Id. at 303. purchase approximately ment to 53 ounces appellant timely ob- showing that record $92,500.00. of heroin for After Powell in- charge. Appellant di- jected to the court’s spected purchased, the substance to be code- appellate record of his rects us to the parties agreed appellant would accom- objection. Again, we de- fendant for the pany parking the officers to the motel lot case records of another cline to review the money order to see the which was to be raised in the support for contentions to find exchanged appellant the heroin. When State, supra; v. appeal. Parker instant See at the and the officers arrived automobile State, State, v. su- supra; v. Hale Salinas located, money appellant in which the State, supra; Donahue pra; Jones v. subse- police was arrested. Other officers for re- Nothing preserved State, supra. room, motel arrested quently entered the view. defendant, and Ferguson and the third A chemist testified also contends Appellant seized the contraband. jur allowing him to call plastic bags tendered to

at trial that three erred in hearing motion on Agent inspection testify Powell for in the motel at ors to defense court denied twenty- The trial grams room contained “502.22 new trial. to call he be allowed grams request that per (25%) heroin .. . 474.07 five cent counsel’s inquire hearing in order to per (25%) jurors heroin at twenty-five cent [and] possible about jury misconduct. A “THE (7) motion COURT: Other to a than seven for new trial alleging jury misconduct must year old child? be supported by juror the affidavit of a Yes, “MR. PHILLIPS: Your Honor. some position other in a to know the I “MRS. CLARK: could consider it.” g., Story facts. See e. Tex.Cr. While has this Court a cold record before 764; App., 502 S.W.2d Howard v. it, judge reviewing the trial answers of an 903; Tex.Cr.App., 484 S.W.2d Prince v. opportunity equivocating venireman has the 320, 158 Tex.Cr.R. 254 S.W.2d 1006. observe tone of voice demeanor presented No such affidavit was in the in prospective juror determining stant case. No error is shown. precise meaning Hughes intended. ground In his fifth appel of error State, Tex.Cr.App., 581, cert. lant asserts that the trial court erred in denied, 950, 1432, 440 U.S. 99 S.Ct. refusing grant challenge a for cause as to 640; L.Ed.2d Tezeno v. Tex.Cr.App.,

prospective juror Appellant Susan Clark. We say 484 S.W.2d 374. cannot the trial maintains that Clark should have been ex refusing court erred in to sustain the chal cluded for pursuant cause to Art. 35.- lenge for as to Byrd cause Clark. See Von 16(c)(2), V.A.C.C.P. because her answers to cert. questions during dire voir indicated she was denied, 441 U.S. 99 S.Ct. prejudiced against anyone who would sell Appellant’s ground L.Ed.2d 1073.3 fifth prejudice heroin and such would render her error is overruled. incapable considering probation pun ishment. Clark stated that she had a ap In his seventh “strong feeling” drug emotional about cases alleges the pellant trial court erred in re “might” which her influence if a defendant fusing tape discovery to allow recorded were guilty. found When asked by defense appellant police between conversations proba counsel whether she could consider officers. The record before us contains tion in sale a of heroin case she stated “I only discovery one filed mind, still a have closed and I have an appellant. That motion contains no refer responsibility.” Nevertheless, emotional brief, any tape recording. ence to In his points during other voir dire Clark stated appellant pretrial our to a directs attention that she could be impartial,” “fair and hearing in Jimmy which Honorable that she “would be reasonable and listen to Phillips, “orally a Jr. motion for renewe[d] considering punishment. facts” when discovery” relating tape recordings to such When asked if she could probation consider client, Ferguson. on behalf of his Aaron if selling were convicted of heroin nothing There is in the record to instant child, seven-year-old a initially Clark re show ever filed motion to “no,” sponded then “I stated think there recordings compliance any tape discover involved; lot would be of circumstances I provisions with the of Art. V.A.C.C.P. answer, give you ‘yes’ would like to or ‘no’ can’t; ‘no,’ leaning Further, but I I am appeal towards if contains no the record your question.” concluding that answers appellant’s recordings, and none such prospective juror, his examination of the appellate relate to objections to the record following: counsel defense elicited the recordings. We are unable to deter- such appellant whether has been harmed hypo- “MR. mine PHILLIPS: Let’s take the ruling any discovery say by thetical and the the trial court’s that Defendant was selling Nothing presented for guilty (4) found four review. pounds of motion. heroin; State, Tex.Cr.App., you granting pro- would consider Mendoza v. 552 Cf. 444; bation then? v. Tex.Cr. Henriksen S.W.2d Byrd probation. 3. In Von that he could We found venireman stated he did not consider no probation ques- think he could in court’s of a defense consider when error challenge the trial denial by Byrd supra, tioned defense counsel. The trial court sub- Von cause. sequently juror prospective elicited the 891. from

93 charge on a more severe 491; was reindicted Tex. Alba v. App., 500 S.W.2d original refusing plead guilty to the 492 555. after Cr.App., S.W.2d al factual appellant’s Even if indictment. eight number ground of error true, is with his contention legation were trial court erred appellant contends the Hayes, 434 Bordenkircher out merit. See following preju failing grant a mistrial 604; 663, 54 L.Ed.2d 98 S.Ct. U.S. by evi jury argument supported not dicial State, Tex.Cr.App., 575 Christiansen argument During jury dence in the record. S.W.2d prosecutor the stated that heroin “will turn ” rehearing grant- prostitutes. Appel ... young girls into ed, is affirmed. sustained, judgment objection jury was and the and lant’s disregard the remark. admonished J., McCORMICK, in result. concurs disregard will Generally, an instruction to jury argu by improper cure caused error CLINTON, Judge, dissenting. inflammatory ment unless the remark is so order reflects an of this cause The record reason “prejudicial that its effect cannot court in which by the trial rendered ably be removed such an admonition.” hearing the Court that “after a court finds g., E. Thomas Defendants, FERGU- determined 691; State, Tex.Cr.App., Blansett v. GARZA, togeth- should be tried and SON 322; Carraway v. Tex.Cr. sheet in the record The trial docket er.” App., We hold that no 507 S.W.2d 761. entry that on contains an of this cause reversible error is shown. for New 1976 “Motion about November Appellant complains also Ferguson cause in Aaron D. Trial filed prosecutor’s argument that heroin is “a D. also.” Con- pertains # 241712 to Garza drug goes my your out in streets the record in this cause does sistently, objec community.” streets in the Defense trial,2 does motion for new but it reveal a argument tion that such was outside of the overruling one on Novem- an order contain record its was overruled. That heroin finds 21,1977, appel- 19,1976. January Then ber way County into the streets of Harris con filed, court clerk of the trial lant and the expression stitutes an of common knowl judge that to the trial gave notice written edge proper plea and a for law enforce excep- filed, his formal bill appellant had State, Tex.Cr.App., ment. See Salinas v. in the tion, majority alludes which the State, Tex. 864. Cf. Cotton v. prefer to opinion. I paragraph of its second (common Cr.App., 500 S.W.2d 482 knowl only a entirety ellipsing in its set out — addictive). edge Appellant’s heroin is asks the trial which the bill name —that eighth ground overruled. of error is REMEMBERED,” viz: that “BE IT court Garza, defendant, requested Daniel appellant “The In his tenth adopt that he be allowed because he the Court contends his conviction is invalid Jury heard the same facts and Capitalization because trial court. All em- phasis throughout in- both Defendants.” is mine unless otherwise tried given open appeal Notice of was then dicated. colloquy appointment of about and there was Garza; attorney appellant appellate trial, joint hearing 2. At for new on motion appellant was informed when the court transcription in this of which is before us attorney for Fer- trial cause, to talk with the wanted guson the trial counsel for Garza handling appeal, the trial his about also addressed the trial court as follows: right” judge “would be all indicated that Defendant, please, “If Daniel Your Honor of the decision. asked to be informed Garza, jointly charged, jointly who was tried entry January re- docket 1977 trial A herein, jointly Jury will convicted pauper’s upon appellant’s oath counts that pleadings now stand on all heretofore filed prepare reporter to the court trial court ordered behalf of the other Defendant Aaron Delbert Ferguson’s identified facts and a statement of Ferguson ... as to the motion for new trial appellate attorney counsel for adopt filed ... we the same affidavits [and] Garza. Ferguson on behalf of the Defendant Aaron objections exceptions all of the is following of the flat the statement of fact: Attorney ... who was representing quash “Garza’s motion to was filed on the FERGUSON, D. timely...” AARON without the of day ne- trial . .. and was not cessity objecting of also whenever those opinion majority The long- invokes the objections were made. That the Court standing exception strict rule for a bill of granted such motion and that for the 36.20, drawn under Article V.A.C.C.P. and purposes any objection of Appeal, made predecessors designed complain its to about by Attorney the for the Defendant AAR- See, adverse actions of the trial court. e. FERGUSON, through ON D. whether g., 146 Tex.Cr.R. Stevens pretrial or trial motions and whether in (1943). But Article of objections form formal motions or V.A.C.C.P., terms, 6(a), by permits its a § during the course of are the trial taken as Thus, of broader utilization the bill. “[a] Defendant, GARZA, if the DANIEL of party desiring to have the record disclose attorney his objections had made such proceeding some . action .. ... or other and motions of AARON D. FERGUSON event or occurrence not otherwise shown or his attorney will not be deemed to exception the record utilize a bill for objections.” have waived the purpose.” this copy Service of a true and correct of the bill Patently, the bill before us was to show upon the County Harris District Attorney’s trial court GRANTED the motion Office, Section, Appellate et cetera was cer- appellant, grant when that was not to tified. The record in this cause contains no record, be otherwise shown of rather than response reaction or recipient. from that complain any ruling. adverse And the course, In due though the trial court nei- very matters characterized in bill were qualified ther specifically approved court, then before the trial and are before exception, bill of objection without in this respective this Court. That each bears its respect the court certified that the record cause number was no moment whatsoev- true, including complete, the bill “a here, being er not be below and should correct in styled record the above and num- merely any In matter of “clerk’s choice.” bered cause.” event, quash, trial as to incorporated by court effect reference appellant’s At the outset brief in this portions of one into the other. page prologue. part cause is a entitled exception he states that under the bill of majority to review “decline[s] own, adopt “was allowed as his support records of another case to find purposes for the of Appeal, any objection appeal.” Fer contentions raised this But made Attorney the Defendant guson’s simply not “another case” —it is and, therefore, Ferguson” Aaron as to those appellant’s, the same case as been had matters not the Garza record “reference parties such all handled as and the transcript will be Ap- made ... to the on prosecut criminal that level peal Ferguson, Now, of Aaron the Co-Defend- only panel opinions after were ion.3 reply ant.” In the upon original the first does handed down submission error, complaining overruling majority separate undertake these quash, prologue the motion to them judicial assertions of twins and then treat Siamese challenged; disparately.4 are not rather there indicted, Indeed, stoutly They separately A: are each but the State resisted motion for theory on the severance since its was that the listed as co-defendants docket.” accused And, recalled, part it trial court conspiracy to be is that was the were of a to deliver the con- tried attorney, the two “should be prosecuting that “determined” together.” trolled substance. The accordingly, pretrial hearing testified at a the motion: being relief 4. The cruelest cut all they Are indicted co-defendants or “Q: day granted the other in denied one is this they separately? each are - - (Tex.Cr. Ferguson v. 58,518). App., No. ap- majority withholds from Because entitled, I to which he is

pellant the relief

dissent. J.,

ONION, P. ROBERTS and and JJ.,

TEAGUE, join. WILLIAMS, Appellant,

Robert Earl Houston, Tonkin, appel- Ronald H. Texas, Appellee. The STATE lant. Dick- Vance, Atty., Lewis Dist. S. Carol No. 60735. Titus, Wilkinson, III, Mike son, M. Alvin Texas, Appeals of Criminal Court Huttash, Houston, Attys., Robert Dist. Asst. En Banc. Walker, Asst. Alfred Atty. and State’s Austin, for Atty., the State. June J., ONION, TOM G. DA- P. and Before Dissenting Opinion to Denial of State’s CLINTON, JJ. VIS for Leave File Motion for Motion Sept. Rehearing

OPINION DAVIS, Judge. G. TOM conviction for from a Appeal is taken finding appel- robbery. After aggravated punishment at guilty, assessed lant years. outset, with are confronted we At requires reversal error which fundamental in the instant The indictment in this cause. Jan- pertinent that on alleges part cause 7, 1977, there: appellant did then and uary committing theft “while in the course Long, money by Serena cash owned Complainant, and styled the hereafter con- maintain with intent obtain and intentionally and property trol Com- place knowingly threaten bodily injury fear imminent plainant in exhibiting death, by using and (Em- pistol.” namely, a deadly weapon, added). phasis

Case Details

Case Name: Garza v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 23, 1981

Citation: 622 S.W.2d 85

Docket Number: 58517

Court Abbreviation: Tex. Crim. App.