*1 GUZMAN, Appellant, A. Gilberto Texas, Appellee.
The STATE of 48825. No. Appeals of Court of Criminal Texas. April 2, 1975. Rehearing April 23, Denied *2 Jr., Mobley, Atty., William B. Dist. John Potter, Atty.,
M. Corpus Asst. Dist. Chris- ti, Vollers, Atty., D. State’s and David Jim Austin, Atty., McAngus, S. Asst. State’s for the State.
OPINION
ROBERTS, Judge.
The conviction was of a punishment, private night; residence at imprisonment". years’ ten error, appellant In his third challenges sufficiency of the evidence sustain the conviction. Lynch awoke Mrs. Pauline testified she early morning February burglarizing and observed a man her home. time, “froze,” up At this in bed and she sat staring at the man for some time. From through open street-light shining light bedroom windows bathroom, man’s she see the could Having man for sever- face. observed the minutes, she him al was able to describe police. relayed description was to the The dispatcher to other who broadcast it burglar units The was de- area. wearing a man cordu- scribed as brown hair, jacket jeans, roy dark blue running ar- toward Omaha Street. The resting message, officers received the went from the com- to Omaha Street two blocks home, plaining witness’ observed description. fitting man After of- stopped appellant and radioed ficers subject dis- fitting the they had a dispatcher gave patcher’s description, the taken description that was knife time, Lynch At residence. from the yel- conducted a search the officers an acid stain pocket with low knife which Later appellant’s possession. was found appel- trial, Mrs. identified night her home on the lant as the man in burglary. appar foregoing, it is From the Corpus Christi Westergren, Jr., Sam A. ample sup- evidence ent that there was (On appeal appellant. only), port prosecution Ray sufficiency questioning of witness verdict. When Lynch. objectionable ex- challenged, segment evidence is this Court must amination light most fa- is as follows: review evidence in vorable to the verdict. Resendez v. “Q Lynch, Mr. I have [Prosecutor] (Tex.Cr.App.1973). The about two or three little areas evidence was sufficient to conclude you *3 up I’d like to clear with appellant guilty party. was the you Lynch, then go. we can let Mr. Appellant’s ground third of error you any give did ever at time this overruled. Defendant, Guzman, Mr. Gilbert your consent to ? home Appellant as a next contends ground of error that the trial court erred “A Lynch] No. [Mr. in admitting pocket into knife evidence “Q you given Have ever [Prosecutor] as a seized result of the warrantless arrest him your consent take of to at arresting a time when the officers property your ? home probable position It lacked cause. is his that the knowledge officers did have “A Lynch] No. [Mr. that a crime had been committed nor the you Did ever know “Q [Prosecutor] description appellant pocket of or the knife prior him to this occurrence ? when the search was conducted. rec replete police ord is with evidence that Lynch] “A No.” [Mr. proceeded vicinity response ato description dispatcher. broadcast point, this defense counsel inter- [At Upon appellant observing matching posed objection grounds on the description, they stopped him and radioed questions form of assumed contro- dispatcher back to the who them told of verted facts and was overruled time, the knife. At this the search was judge.] produced conducted which item con Appellant
troversy. present maintains controverted fact Similar facts have been State, ap identity ed to assumed is that of the of the this Court before in Turner v. pellant. 499 The merits this argument S.W.2d of need 182 (Tex.Cr.App.1973); State, not be Browning appellant’s reached because of fail (Tex. object. timely questions ure to All Green three Cr.App.1972); State, appellant were State, 901 asked and answered before (Tex.Cr.App.1971); Brown v. objected. timely 443 It is S.W.2d 261 fundamental that (Tex.Cr.App.1969). Therein, objection urged to we inadmissible evidence police have held that radioed broadcasts, opportunity. cause, g., the first E. Martinez probable based on re State, 504 porting (Tex.Cr.App. S.W.2d 897 felony description and a of the suspect 1974); Cooper v. 500 837 satisfy were sufficient to the re quirement (Tex.Cr.App.1973); Sierra v. probable of cause under Art. S.W.2d 259 Evans v. (Tex.Cr.App.1972); Vernon’s Ann.C.C.P. Under the cir described,
cumstances S.W.2d 180 the officers clearly done; assuming This was not but even were appellant. authorized to arrest objection made, timely been had con The search incident arrest was tentions are without merit. There no authorized and the fruits thereof proffering controverted fact assumed were admissible into evidence. We con questions. these are of the clude These elements probable cause was shown for proven offense appellant’s which must be order arrest and search. deny sustain a To conviction. fourth questions to ask such would error, complaint is made of the effectively deny State’s ability prove long time. fac- Accordingly, passage overrule the Another its case. et ar- of his defense was that one of the ground of error. un-
resting since deceased and officers is testify. able see either fail to how appellant complains Lastly, the trial by allowing ad- these would be affected comply failing with the court erred preparation. ditional time trial mandatory provisions 26.04(b), V. no He maintains there was A.C.C.P. in be contended that there was cannot 10-day period allowed for waiver of the Appel time to sufficient for trial. ap preparation. reflects The record attorney waiving lant’s in his motion pellant originally indicted states, 10-day “Having pre period May was dis 1973. This indictment pared involving a trial this transaction a new indict July missed on proceeding several months day ” presented same for bur ment ap . . motion have . *4 night. private at The glary of a residence pointed discharged being in counsel for are almost allegations in both indictments competent, having he admits to had five identical, being the in difference only the attorneys represent him this same other on elements that the clusion of the additional record, present the case. From counsel “private night and a occurred appointed had been for two one-half and bur residence” than a “house” was rather addition, appellant In a months. had filed 1973, 9, days July glarized. on Four later speedy motion for trial less than two weeks ap appellant’s and the case went to trial emphasized before trial. This Court waiving the pointed filed a motion counsel importance adequate prepare time to period This 10-day prepare for trial. to for interpreting 26.04(b), Art. V.A.C. that had a statement he motion included State, (Tex. 503 249 C.P. Cobb v. S.W.2d go trial for several prepared to to State, 480 Cr.App.1974); Carter v. complained of is that months. The defect v. (Tex.Cr.App.1972); 735 and Meeks actually not appellant’s signature was This issue was included in this motion. State, supra, In said: Meeks v. Court brought attention not trial court’s appeal. but first raised for the time on purpose 26.04(b), article V.A.C. “The indigent to an guarantee is C.P. problem presented in this is The case appointed his court accused he and by this very to the one faced Court similar in attorney time will a reasonable have (Tex. 213 Hayles in v. In they prepare which can defense. in two The difference Cr.App.1974).1 case, rec- present it is clear from the way in no af negligible is and indictments three counsel had ord that presented at fected defense prepare trial.” for months which fact, ap that while trial. In it is curious Hayles as in We conclude can al pellant complains he have been should re- support a State, supra, do not the facts mandatory days to lowed the further versal. trial, on prepare his was based defense accurately Lynch’s impaired ability to
Mrs. problem burglar her an additional identify appellant There is also as the designated ago filing materials years one-half because home and two days pistol. robbery Five with the same district dieted for 1. Both came from cases later, County to trial without the ease and were tried went in Nueces noteworthy attor prosecutor. held that is waiver whatsoever. same days required opinion ney than our had more was tried before the instant case Hayles State, supra, his defense law in which was rendered. change alter supra, appellant not Hayles indictment did was minor shotgun. robbery The fact. with indicted for he re-in- dismissed and was indictment was in After considering inclusion the record. The material the other sections 40.09, V.A.C.C.P., cluded the all motions indictment and Art. clear that involving Appellant contemplate main the statute and orders it.2 does not the situa timely not filed and tion at The tains this material is bar. statute that mat directs ters designated by re parties before us for shall be in therefore appeal cluded disagree. 40.09, 1, in the Notice was Art. view. We Sec. V. 28, A.C.C.P., August record given request that failure in clusion of approved sixty some four months later these matters days was within 26, appeal given ma notice of judge on December 1973. The not be will complaint, question terial filed some six Sec. appeal provides months after the notice of on Feb V.A.C.C.P. Section 7 of Art. 40.09 ruary approved. objec 1974.3 It was ordered included tions later, April 24, are made to the record record two months then the court shall conduct hearing 1974. final order for the and enter such or ders proceed signed may as appropriate two to cause the speak May Appellant weeks later on re truth. findings Such 2, V.A.C.C.P., adjudications, supported lies on Art. if by evi dence, provides: shall which Although pro final. Sec. 7 procedure
vides for the for approving the record, it is silent as to the party instant situa may “Each file with the clerk a bar, tion. the case at there designation written was no specifying matter for *5 objection, no hearing, findings nor in or ad inclusion the record. The failure of judications to become provided final as the clerk in designated to include matter 40.09, Art. The controversy Sec. 7. ap- will not be arose complaint on for because supplemental of a peal subsequent if designation the specifying such approval of the record once it already matter be not had filed with the clerk within approved sixty days the court after appeal giv- objec notice of without party. from either question (Emphasis en.” added) suc
cinctly put is whether the State waived the right to have designated the matters in Here, the designated material for inclusion cluded in the record object failure to in the record was not filed with the clerk prescribed within the day period fifteen sixty days within but some six aft- months after completion notice of of the record er appeal. notice of The material was was mailed. We think not. The recent filed and ordered included in the record case of Heck v. the judge. 40.09, 2, trial Art. Sec. refers Cr.App. (Tex. 1974) involves a situation the situation where the clerk fails concerning supplemental approval of the designated include the material and not case, record. In that the ap record was is, fact, where the material included. proved without statement of facts and the says All statute is that if request the objection. without Six months later a timely not filed and the clerk in- refuses to approved. statement of and facts was filed it, clude it cannot complained ap- be of on This Court held: peal. present case, the the material was included pur- is not within the July find the trial court’s order of “We view directing transcription of that the Sec. 2. pri- case, appears record, 2. The record of this from the one of even when con- the question, mary filing sidered without the late of this material materials reasons for appellant’s reveals that there were motion for numerous references was because of the previous Appel- indictment the motions extension of time to file his brief. pertaining January 25, fact, thereto. the first order lant’s brief was due on 1974 judge granted of the trial after the was was until case called extension of time February days later, was to dismiss the and have the indictment 1974. Two State 10-day requirement designated requested the trial materials be the included waived. in the record. 272 reporter’s ters consideration this Court. We
of the notes be included court long need not of our appeal strain construction in the record on done before statutes as far in materi- appellate transmitted to order hold the record was als in the bar supplemental case at before this Court constituted a approval us. (Emphasis of record.”
added) Furthermore, express we additional con- cern about opportunity of afford- lack State, supra, Althtough Heck v. prosecution respond ed the supplemental approval of the with a deals case, present contentions. In the no com- rather matters des statement facts than of plaint 10-day made about waiver we feel ignated for inclusion on re-indictment at trial or the motion for by the same both situations are controlled new trial but raised for the first time instances, supple In both rationale. opportu- brief. At the first the rec approval mental occurs well before nity, later, days produced two the State in this Court. Both Art. ord is filed designated materials in the inclusion legis 7, clearly 4 indicate Sec. To record. materials could hold afford judge the trial lative intent that by supplemental approval included regards, so ed discretion these limited record in the discretion the trial and the record that the of facts statement judge effectively deny the would be to Furthermore, “speak truth.” shall prosecution to rebut ju was still within note the case presented by appellant. ground of error thirty trial until risdiction Compare Green v. brief. See days filing after the state’s which dealt with (Tex.Cr.App.1974) (Tex.Cr. Webb v. S.W.2d presumption arising jury of harm when State, 445 App.1969); McGee separated being charged without said It cannot be the consent There defendant. his discretion abused complaint first where was made material have permitting mo- time on and not raised *6 judge’s dis placed in If in the the record. trial, tion for or this Court new trial cretion, has been designated the material reasoned: refused, Sec. by virtue of Art. then 2, V.A.C.C.P., have been , the State would the “. . . was denied even precluded The fact the complaining. opportunity showing any from erroneous the materials included while separation were allowed harmless.” was jurisdic the cause was still in trial court’s controlling is feel itself, such rationale cannot, to be be said
tion in and of presented the instant The facts here being without more case. an abuse of discretion the compelling permit far more are clearly distin is This situation shown. respond to at least the State involving an at those cases guishable from In v. contentions. Green transcript tempt supplemental once to file a the supra, the to be afforded was State jurisdiction and the trial has lost the court “presumed could harm” g., chance show the E. pending before this Court. pro- possibly have been harmless. Such (Tex.Cr. pre- salutary purpose in cedure serves the However, in Davis App.1973). venting prosecution being the “sand- this (Tex.Cr.App.1973), unnecessary re- bagged” preventing and in permitted supplemental transcript Court State, 422 pur versals. Cf. the Seefurth be filed for the from trial court fact, hold In opin original poses rehearing after the place be to an intolerable otherwise would only had the There ion delivered. hire a case, prosecution burden on the offices jurisdiction of court its trial lost attorneys record battery of to comb each opinion original but waited until anticipate completion in order to after its mat- published preparing additional before legislative ly indicate the intent that might possible grounds error that be judge be afforded limited discretion The administra- by raised defendant. regards in these . . . .” Article game justice is not a where tion of 7, supra, in fact reads: parties other into seek to maneuver each Accordingly, we find unwitting mistakes. completion of “Notice of the record before us. by shall made the clerk certified respective parties mail to the or their in his asser Appellant is correct presents If neither counsel. files burglary pri of a tion that any writing objection the court in to the night vate residence at are distinct offens record, days within fifteen after fact, Ann.P.C., In Vernon’s es. mailing of such notice and if Yet, specifies the two are distinct. record, objection he shall has no in cannot overlook fact that the new approve objection the same. If same dictment was for the transaction with made, approve if the court fails to or identical facts. The variance between days expira- record within five after the allegations pre in the two as indictments fifteen-day period, of such the court viously discussed is minimal. We cannot hearing, shall set the matter down for escape the realization that the had to State and, hearing, shall enter such or- prove the same exact facts relied on may appropriate ders as to cause the first anything, the burden indictment. speak record to the truth and the find- of the new State was enhanced under the orders, ings adjudications if in such appel indictment. The defenses raised evidence, supported by shall be final. lant in way the trial court are in no affect discretion, require its may the court indictment; change ed the minor attendance of the defendant at such preparation nor is trial affected in re hearing. proceeding Such shall be in- Also, spect. the defense motions under cluded and the entire accepted indictment were under this approved by (Empha- court.” objection indictment without from the added.) sis light foregoing State. of the discus It will be seen that sion, discretion left it is the instant clear the facts of to the trial However, pro- the terms of this case do not warrant reversal. vision whether the defendant’s attend- stringently we must judges admonish trial ance at the hearing will be predicament. required. to avoid this in Once We do not the record has been approved, aft- tend to invite whether dismissals of indictments and not, er hearing operation re-indictments allowing without counsel section has been completed appel- days which to for trial. The *7 process late moves subsequent forward holding strictly of to this case is limited to stages provisions under the presented. subsequent of the facts Appellant’s final How, then, sections of this article. of can error is overruled. this supply authority section adding The judgment is affirmed. new material to the record at a date two operation months after its came ato close ODOM, Judge (dissenting). upon approval of the record ? The majority conclusion of the that the majority propose The legislate to new may court any order new matter re- procedures solely upon the basis of general quested by the State to be included in the legislative is proper intent. Such pot any record at time before the record is role proper for the is courts. con- to filed in this wrong, unsup- Court is legislative strue intent from enactments of ported by the statutes. body; proper that it is not reverse to that majority
The provisions process assert that the provisions and create new on the of V.A.C.C.P., Article general Legisla- “clear- basis of the intent of the accused, nonobjection of oversight true it would suf- latter were ture. captions any it error Legislature generally enact been held fice for to has courts; record the statutes to the has waived. alone leave general to write a ticket leave the
driving to us. I cannot
to
subscribe
unwilling
second
are
to create a
“We
practice.
State, when
standard for the use of the
rec-
certain matters
overlooks
majority correctly
The
recognize
ord,
object
fails to
thereto.”
but
only a
of
strained construction
our statutes
permit
could
matter
new
to
added
supra,
Lynch,
the State
this case as
transcript prepared
supplemental
record
in the rec-
designate
failed
inclusion
to
after
reversal on
submission
original
matters essen-
under
certain
ord
Section
Court,
as was done in Davis v.
in the
tial to
no reversible error
showing
Tex.Cr.App.,
of the case to the rec- approval ord in whatever manner may in its discretion elect.3
Accordingly, holding dissent from the I majority upon because it is based misinterpretation statutory rules
governing appellate process, in ef- merely
fect holds those rules to be directo- ry, leaving the trial unbridled discre- supplement the record on whatever manner he chooses.
ONION, J., joins P. this dissent. Appellant,
Gregory WILLIAMS, v. Appellee. Texas, The STATE of 49754. No. Appeals Court of Criminal of Texas. April 9, 1975. pur- jurisdiction Tex.Cr.App., 679, and at 2. limited 501 S.W.2d It does have State, poses, g., grant v. also McCall under Art. there. See e. new trial cases cited Tex.Cr.App., the trial 334. V.A.C.C.P. place discretion to such unbridled untimely as contended lias held than matters This Court often majority, cases not overrule those be con- should for new trial will not filed motion hearing preclude of matters sidered, consideration our nor the record of will hearings? Cf. considered, unauthorized even when it adduced a motion be Tex.Cr.App., 517 S.W.2d the trial court Tocher lias been considered (authored 1, p. Boykin .Turlze placed g., footnote E. the record. Roberts). 946; Tex.Cr.App., Jones