*1 argues that the he had two witnesses. He testimony and answer constituted unsworn Ray LEE, Appellant, Johnny attempt of an- to holster the witness. of Texas, Appellee. objection No to this made. answer was Nos. 48083-48085. objection, if had been an no er-
Even there Appeals Court of Criminal of Texas. was re- ror shown because the answer sponsive to the asked defense counsel.
Appellant finally contends that the committed reversible when had jury
informed the the State Ap penalty the death in the case. to,
pellant prior but tried was indicted after,
shortly penalty holding death
Court decision Georgia, in Furman v.
unconstitutional 33 L.Ed.2d jury
During dire examination of voir
panel, prosecuting attorney announced penal-
that the State had waived the death
ty. Appellant object. Again, dur- did not stage
ing argument penalty at the
trial, following occurred: (District Attorney):
“MR. DICKEY
Now, started and I when Mr. Stroman
out, penalty we did not seek death case, pen- death we waived the
alty. counsel): (defense
“MR. JOHNSON Honor,
Your also like the we would
jury pen- instructed there death is no
alty any Dickey is more and that Mr.
indicating there is. Well, jury
“THE COURT: will dis-
regard the remark about the death
penalty.” jury already had been informed objection penalty
without the death
had been waived. court did not au- penalty
thorize such a charge. Even
if the for a mistrial moved jury
after the court instructed the not to remark,
consider the no error would be
shown. error;
The record contains no reversible is affirmed. *2 by sworn appellant, were made
confessions clerk, approved by before the district appellant, for counsel for into and introduced evi- dence. 20,153, appellant’s judicial
In Cause No. that confession recites on November County, Navarro prosecutrix, copulation carnal with in an opening body prosecutrix of the which part, to-wit, not was a sexual the mouth. stipulation The written testimony prosecutrix reflects that she testify would 26, 1972, that on November “by force and without the consent said wit- ness, put penis into the mouth of said witness.” In 20,155, Cause appellant’s No. judicial confession recites that on November 1972,in County, Navarro “I did have car- copulation nal , with . . . a female human being by using my mouth on her parts.” stipulation written prosecutrix testimony of the she testify would that on the occasion in “by force and with- out the witness, consent said used his , the sexual . . . being.” female human Corsicana, Jr., for Jackson, Robert C. 20,156, Cause No. judicial appellant. confession recites that on November Corsicana, Morris, Atty., Dist. Jimmy 1972,in County, Navarro “I did have car- Vollers, Buddy Atty., and D. Jim copulation nal with a female named Austin, Stevens, for the Atty., Asst. State’s . in her anus.” The stipu- written State. lation prosecutrix states
that she
testify
occasion
in question that she
OPINION
“had
pene-
her anus
trated
defendant’s
against her
DAVIS, Commissioner.
will.”
from three convictions
Appeal is taken
reject appellant’s
We
first conten
assessed at
sodomy.
Punishment
for
tion that
the evidence is insufficient
court or-
years
each
fifteen
case.
support the convictions. The judicial con
sentences be cumulated.
dered
fessions are sufficient to support the con
victions
1.15,
under Article
his coun-
open court
Vernon’s
Appellant, in
Ann.
C.C.P.
Araiza v.
sel,
by jury and
right
of trial
116;
Knight
waiv-
in each case.
pleaded guilty
Written
Patterson
appearance, confrontation
Tex.
ers
Cr.App.,
en-
Soto
witnesses
cross-examination
Tex.Cr.App., judical
S.W.2d 389.
appellant.
tered into
Written
State, Tex.Cr.App., 481
Benard v.
Appellant contends
report
is shown.
error
pre-sentence
427. No
considering
by the court amounted
action
in that such
that Article
appellant’s constitution
deprivation of
to a
Ann.P.C.,
is unconstitutional.
Vernon’s
and cross-exami
right to confrontation
al
authority cit
argument advanced
The records reflect that
nation.
*3
support
before this
ed is
were
1973,
11,
at which time
on
was tried
June
593,
State,
in Turner
497
v.
S.W.2d
pend
deferred
imposition of sentences was
it
stated:
where was
pre-sentence report.
ing
Sentences
1973,
27,
pronounced
the court
on June
Batchelor, D.
v.
“He cites Buchanan
stating
imposing
that he
before
sentences
729,
inferior
C.,
an
F.Supp.
wherein
308
pre-
opportunity
had had an
to review the
held in accordance
Court
United States
report.
record does not re
sentence
contentions,
as it related
hearsay statements
flect that there were
However, this hold-
persons.
to married
were,
report.
a court
Assuming there
such
ing
vacated
required
disregard hearsay
is not
to
state
989,
in 401
91
U.S.
S.Ct.
pre-sentence report.
Brown v.
ments
1221,
acts or evidence. See made in guilty and cf. Waller v. view of the entered Florida, 397 U.S. by appellant. S.Ct. 25 L.Ed.
The adequacy
attorney’s
services on behalf of the accused must be
Miguel
GONZALES, Appellant,
Garza
gauged by
totality
representa
tion.
Witt
475 S.W.
Texas, Appellee.
Satillan v.
No. 47653.
Opinion by the Court.
MORRISON, part Judge (concurring dissenting
and in part).
Recently in Ellis v. we said:
“Although double carving, and raised in the
ardy, court, they
trial court involve or and Federal
a violation of both the State
Constitutions, and the above stated require ‘in our review the interest
facts 40.09, 13, justice.’ See Art. V.A.C. § C.P.; Price v. Tex.Cr.
App., 475 S.W.2d Cf. Shaffer v. 873.” this in requested mind I
With the Clerk trial court to send this
“deposition” which was considered
trial court in assessing punishment. An
examination reveals that all acts which were the basis for the
prosecution in these cases occurred parties,
between the same at the same
place, in the same morning. doctrine carving given application. must be
I would affirm the of convic- #48,083
tion in cause and reverse and dis- prosecution
miss #48,084 in causes and
#48,085.
I, therefore, concur in the affirmance of #48,083,
cause to the affirm- dissent #48,084 #48,085.
ance of causes
ONION, J., joins opinion. P.