*1 the same for who was be
Kitchens. The actions calf, thought telling
claiming Rogers his, away suffi- hauling it
it was pre- of theft false
cient to raise an issue represen-
text. Verbal assertions or direct pre- required false are not to show
tations representations, they may be
tenses or Dix- by party’s and acts.
shown conduct State, Tex.Cr.App., 215 181.
on v. is
The contention overruled.
Appellant’s pertain to other contentions question charge present the court’s pre- by false
of whether the issue of theft
text was raised the evidence. perceived charge. is
No error jury charge refusal to court’s not and Kitchens was Young
the consent of disposal animal and
required in the authority to Rogers had the sole
that Lon error, instruc
dispose as such it was weight
tion would have
the evidence. affirmed. judgment
Opinion approved by court. HILL, Appellant,
Elbert Texas, Appellee.
The STATE
Nos. Appeals Texas. Criminal
May 5, 1965.
Rehearing 16, 1965. Denied June Denied Oct.
Second
appointment, Gay investigated the cases and appellant. advised and with the counseled burglary (not The theft and cases the two appeal), here on and the enhancement al- legations burglary indictment for upon returned March 11 were dismissed Following recommendation state. dismissals, appellant on November 9, 1964, plea guilty, a entered before the jury, burglary without and theft indictments returned March 11. After procedural requirements all had been com- plied with, including the introduction of sufficient evidence to authorize the victions, appellant the court found guilty punishment in each and assessed his years burglary at two case and ten years pro- the theft case. Sentence was nounced on November 1964. Notice of appeal was on November appellant upon For reversal relies contentions, following in his as stated Grimes, Butler, Binion, Rice, Pearson brief: Knapp, appeal only), Cook & Houston (on appellant. “Appellant’s Points of Error concern only the matter of the trial failure of Briscoe, Frank Atty., Dist. Carl E. F. appellant quali- court to furnish with a Dally, Brough Shaffer, and C. James Joe represent fied at law to him Houston, Attys., Asst. Dist. Leon B. 9, 1964, or, having dis- Douglas, Austin, Atty., State’s for the State. covered grant such error to a new
trial.” McDONALD, Presiding Judge. undisputed It that on November Gay, appointed by Desmond E. styled present above causes the same ap- indigent the trial court to questions appeal. Hence, they on are con- pellant in burglary case and the theft solidated for disposition. review and One prior case alleged with convictions en- felony pun- conviction is for theft with the hancement; timely that had failed ishment assessed at ten years; the other annual State Bar dues burglary punishment is for with the assessed was removed from the State Bar member- years. two at ship 1, 1964, September roll due to non- 11, 1964, On appellant March fee; payment of and that he was rein- indicted for the burglary, offense of 30, 1964,upon payment stated on November felony prior the offense theft with two of said fee and in good has continued convictions for enhancement. The standing. charged by was also indictment The record further shows that Desmond felonies, with two other one for E. Gay was admitted to the State Bar of burglary. the other for April, Texas in and has been con- 9, 1964, tinuously engaged On November Desmond E. appointed by date; annually the court to since that he had twenty twenty-five in said cases. After such criminal the book- many them attached
pleas
guilty,
of not
with a certificate
Texas, dated
keeper
Bar of
offenses as those in the
similar
September
reflecting that
investigation
After
cases.
instant
dismissing
paid
“has not
his State
counselling, and
the state
lant’s
1946, delinquent
no-
allegations
the enhancement
in the instant
dues since June
cases,
from which
August
and also
other
tice
sent on
theft case
two
*3
received,
dropped
he
Gay
plead guilty
reply
and was
advised the
to
Sep-
on
burglary.
of
Bar
to the instant cases of
and
from the rolls
the State
1946,
reinstated
1,
not been
tember
and has
judges of
The written statement of the
obviously
this
to this date.” Since
Court
in
four criminal district courts
Harris
appearing
consider matters not
did there
County, including
judge
the
the
in
and
in the record made
the trial court
cases,
instant
recites as follows:
jurisdiction on an
attack its
those which
appeal,
it not amiss to here state
we think
certify
“This is to
known
we have
case,
attorney in
that
the
Martinez’s
attorney
Gay
the
Desmond E.
the
from the records of
Office
shown
years,
prac-
number of
and that he has
Texas,
Supreme
Court of
the Clerk
the
long
ticed in our Courts as
as each
1946
pay up
delinquency
all of his
from
did
Judge
respective
of us has been
of our
24,
September
through
on
1958
appeared
He
regularly
Courts.
has
that Martinez was indicted
record reflects
defended clients who have retained
November
for an offense
him,
accepted appointments
he
has
14,
on October
to have been committed
represent indigent
during
defendants
attorney
appointed
an
Court
all of this time in our Courts.
It is
and his case
him on November
opinion
competent
our
that he is a
law-
January 20,
and the
trial on
went to
yer
qualified
and well
de-
24, 1958.
January
on
trial was concluded
in
fendants
cases.”
criminal
handed
opinion was
original
This Court’s
judge
Another
of another criminal dis-
18, 1958, affirming the con-
down on June
trict
in
court
Harris
relates facts
County
of death was
viction,
penalty
wherein
in his written statement
show
which
month old
murder of a 9
for the
assessed
ability
in
trial of criminal cases
opinion
this Court
majority
child. The
him;
judge
before
and the
further states
Rehearing
Appellant’s Motion for
“
**
*
that,
appeared regularly
he has
grant-
handed down
my
in
years)
ten
and I consider
(for
setting aside
rehearing,
ing the motion for
competent
defendants in
reversing
of affirmance and
the order
criminal cases.”
accord
not in
are
remanding
case. We
Martinez
decision
with this Court’s
support
To
reversal
contentions for
however,
the State
do,
construe
case. We
relies
light as this
in the same
Bar rules
(1958),
66
did
did,
5th Circuit
and as the
there
Ellis,
which was followed in McKinzie v.
delinquent
is,
supra.
McKinzie,
That
Cir., 1961,
5th
status he delinquent. Sundermeyer, bar, Tex. attorney, In Stokes v. In the cases at 583, attorney, Civ.App., 170 S.W.2d E. tried these cases on No Desmond Sundermeyer, delinquent de paid was notified that he was his vember linquent year 23, payment Bar 1964. He 1941 State dues 1964, May paid his dues bar dues. He was reinstated on November standing. We year beginning good the fiscal has continued in have June attorney May 31, case of an who has ending before us the “purged” delinquency. Appeals held that himself of His acts Galveston Court of Civil period when name was re Sundermeyer precluded during Mr. was not from membership compensation legal moved from the roll of recovering services
905 represented Upon retrial and were Bar Texas were valid State lawyer, but delinquency. only by legally licensed paid up when he revitalized field, capable in of the most our like the one May illustrate a situation we opinion which I as is demonstrated bar, the case reversed at prepared for this Court. then, appellant urges; on a grounds that Every 333 retrial, represented by appellant is an at- penal- especially accused those in death delinquent torney not shown to be to, ty is entitled as we said in Brown dues, the District at which time 323 S.W.2d Tex.Cr.R. a wit- Attorney places the stand as tolerably trial.” This “at least one fair attorney was a ness for state first trial Martinez did not secure at his delinquent attempts adduce member and get he did on his second trial. and this attorney gist a conversa- from said step I I retreat not one from what said in during the tion had with both cases. that said was “counsel” this, case; quite clear any member bench or Aside from it is does Cir., Ellis, immediate reasoning doubt that an McKinzie v. bar this State objection this con- F.2d that these convictions should would be taken that privileged communication not stand. versation was that the
between and client and trial would sustain it? That situation FOR ON MOTION APPELLANT’S objection and could well arise and such an *5 REHEARING contrary would be to our ruling appel- upon we to reverse this case WOODLEY, were Judge. Under the doctrine of
lant’s contention. v. views as to Martinez The writer’s (assuming such case were stare decisis State, are 167 Tex.Cr.R. compelled to we would then be appealed) dissent set out his therein. case, reverse such a were we to reverse this one. If, of suggested, the reversal as has due State was conviction Martinez v. evidence, stipulated, which part to the fact that bills at least sufficient to sustain convictions. any preserved, exception or was were error, judg- no reversible appointed to Finding reason other than that ments are affirmed. not a member of the State defend was failure suspended for
because he had been dues, is not the Martinez case MORRISON, to his Judge (dissenting). authority setting aside these convic- respectfully I dissent to the affirmance tions. overruling of these convictions State, do not re- is so because the records v. 167 Tex.Cr.R. This ap- only require that Desmond E. It a short flect S.W.2d 66. will represent appellant, was not any pass pointed to to research member of the bar qualified represent in crim- opinion. It is defendants upon the soundness in the rec- nothing there is at Martinez’ first inal eases and vital to remember that sug- appeals us in which or informal bills ords before these trial there were no formal any way to gests that Mr. failed in exception objection to the Court’s and no original adequately competently advise charge. Appellant’s sub- brief on before penalty lant and him his trial mission in a death conviction pleas guilty. The It court on his pages generalities. sisted of two upon qualifications is bottomed only upon rehearing that the writer dis- attack upon timely pay his bar lightly af- failure to that this had covered so penalty dues. firmed a death conviction.
If punish- agreement lated facts and as to the 66, may 318 S.W.2d be construed as re- ment to be recommended. quiring the aside of a conviction setting are Appellant’s rehearing motions for plea
upon a guilty before the court overruled. showing appointed by that counsel court to him was delinquent in
payment dues, of his bar we remain con- McDONALD, Presiding Judge (concur- vinced that it should be overruled. ring.)
In ground addition for reversal I concur with the results reached common appeals, to both it is now contended these two I Judge WOODLEY in cases. that the applicable think the waiver is to both cases conviction for theft with upon stipulated the cases where are tried punishment years assessed at 10 (before us pun- agreement as to the evidence in Cause 38,164) No. must be reversed recommended, to be here ishment because there showing is no in the record ready appellant If get done. had his attorney stipulate agree and waive in statutory prepare time which to get ready for? then what else could trial, in appellant’s violation rights un- very effectively. He waived in both cases Ann.C.C.P., der Art. Vernon’s right to counsel for his defense under the Sixth Amendment to the Constitution United States was therefore denied. support
In of this contention advanced
for the first
rehearing,
time on motion for
Art.
cites
V.A.C.C.P. and
Gudel,
the cases of
parte
Tex.Cr.App.,
Ex
LINDSEY, Appellant,
Dub
775;
368 S.W.2d
Bennett v.
Tex.Cr.
*6
App., 382
930;
parte
and Ex
Texas, Appellee.
The STATE of
Cooper, Tex.Cr.App.,
The state out that the 2, exception formal bills of June appearing transcript were not filed within the 90 Oct. Denied days statute, allowed and the record is silent as judge appointed to when trial
counsel to defendant
felony theft case.
It follows that there is no affirma showing
tive record
and his days allowed 10
prepare for trial in the case showing affirmative that such
was not writing. waived in Also there
no affirmative waiver showing by appellant bearing
signed and his counsel burglary the number case was apply
not intended to to both day upon stipu-
before the court the same