Johnson v. StateJohnson v. State
- Reporters:
- ,
- Before:
- Morrison
Rehearing
*335ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Presiding Judge.It is now made to appear that the bills of exception referred to in our original opinion werе filed in the trial court on December 5, 1963, and notice of appeal was given on October 30, 1963.
Bill No. 1 сomplains that the state failed to introduce competent, positive and unequivocal evidence that the liquid offered in evidence was an alcoholic beverage as contemplаted by Art. 666-3a, Vernon’s Ann. P.C.
Bills 2 and 3 relate to the form of the affidavit for search warrant and the admission in evidenсe of the fruits of the search.
The motion for rehearing presents interesting questions regarding certification of error in ruling upon the admissibility of evidence in а trial before the court. We note, however, that the information alleged the possession of whisky in a container which had no tax stamp and no evidence affixed showing payment of tax to the state and the appellant pleaded guilty to the charge in the information before the court.
This being a misdemeanor case, the state was not required to introduce any evidence and the presumption is that in arriving at his judgment the court did not consider any evidence improperly admitted. See Arnold v. State, 161 Tex.Cr.R. 344, 277 S.W.2d 106; Tealer v. State, 163 Tex.Cr.R. 629, 296 S.W.2d 260; Slater v. State, 169 Tex.Cr.R. 587, 336 S.W.2d 167.
In the absence of any showing that the evidencе introduced showed as a matter of law that the dеfendant was not guilty as charged, the court’s judgment upon the defendant’s plea of guilty will not be disturbed.
Appellant’s motion for rehearing is overruled.
Lead Opinion
The offеnse is the possession of untaxed’ whiskey; the punishment, ten days in jail and a fine of $150.00.
No statement of facts accompanies the record.
Three formal bills of excеption appear in the transcript, but there is no showing that they were filed in the trial court within the 90 days prоvided by Article 760d, Vernon’s. Ann.C.C.P., and therefore cannot bе considered.
No reversible error appearing, the judgment is affirmed.
Rehearing
APPELLANT’S SECOND MOTION FOR REHEARING
McDonald, judge.Since the delivery of our opiniоn on appellant’s motion for rehearing a сorrected judgment together with an affidavit signed by the trial judge in support thereof, dated subsequent to the perfection of this appeal, has been fоrwarded to this court reflecting that appellаnt in fact entered a plea of not guilty instead оf a guilty plea. Until this appeal has becomе final, the trial court is without authority to correct the judgment which forms a part of the record on appeal. Art. 772, Vernon’s Ann.C.C.P.; Parker v. State, 169 Tex.Cr.R. 583, 336 S.W.2d 431; see also Fitch v. State, Tex.Cr.App., 378 S.W.2d 313. Under the authoritiеs cited, the corrected judgment will not be considered.
Appellant’s motion for rehearing is overrulеd without prejudice to his right to secure, if he can, thе entry of a judgment nunc pro tunc by the trial court from which he might again appeal to this Court. Parker v. State, 170 Tex.Cr.R. 570, 342 S.W.2d 764.