*1 “Q. You out there went and made
contract Mrs. Garces? Yes,
“A. sir. And,
“Q. you copy filled her job supposed
it how much the
to cost? Right.
“A. And, copy
“Q. brought company,
and turned it in to the company filled in the bottom application
from the credit
you turned in? Right.”
“A. undisputed entitled to receive
money other than for labor and a $100 expenses
vance for job until the
pleted, received from Mrs.
Garces, $800, at least to the extent executed, belonged
the time the contract was Supply Company; Lumber agent,
received its
embezzled. respectfully
I dissent to overruling rehearing. State’s motion for McDONALD, Appellant, Texas, Appellee.
The STATE of
No. 37050. Appeals
Court Criminal of Texas.
Oct.
Rehearing 25, 1964. Denied Nov. Rehearing
Second Motion for Denied Jan. Antonio, Semaan,
Goodstein & appeal only, *2 around, Barlow, Atty., lap E. and shift the cards E. Dist. James James Gage winning card. Raymond A. red card Hope, Benavides and G. John Antonio, complainant bet if Attys., agreed to a five dollar Weitzel, Dist. Asst. card; up appellant Austin, that would Atty., turned Douglas, B. and Leon complainant winning Gilmore for the State. Appellant flashing same to him. the first bet and the next bet of won judge. fifty appellant three dollars took dollars complainant Ap- up. and wadded pretext with is theft false offense complainant showed which card to alleged for enhance- a up turn and he when did so co-defendant punishment, confine- purposes; ment Gage won the The next bet bet. was peni- (10) years in the state ment ten way played two thousand dollars the same appellant pled guilty not tentiary. The appellant showing complainant with jury. before a and the trial was game Upon red card. this co- pay defendant bet but not lost the would principal the com- The State’s money put up by no off because was Gilmore, he testified that plainant, David appellant. plainant Gage and said he did co-defendant, on the Gage, met one Jesse they not worth know if were two thousand Spartan August, a 22nd Appellant got went and dollars. then a County; Gage, that co- in Bexar Store appel- Mr. Reese who was unable to loan defendant, got complainant Gilmore’s into lant two thousand dollars to show his worth. stop that truck to be taken to bus Appellant complainant asked to show two attention en route thereto Gilmore’s while complainant suggested thousand dollars and ap- an force drawn to outside Gage his truck titles to which co-defendant picked pellant, McDonald. McDonald was replied write,” appel- “I can’t read or so inquired up stop; Gage a bus complainant lant told he two if would show girl, that an address some about dollars, he, appellant, win thousand would like appellant replied “there is address give complainant two thousand dollars Gage pay agreed that.” It was that would Complainant just to one thousand. appellant Twenty ($20.00) Dollars appellant show two dollars since thousand they if complainant Ten Dollars ($10.00) “I’ve won two thousand dollars would drive him to town. Co-de- colored all to is show do two thousand money Gage pulled roll fendant out a dollars”, give you “I’ll a thousand dollars.” got Gage said and flashed it around. Gage money and Reese tied the a hand- he, check; money from insurance that complainant appellant kerchief and complainant appellant he Gage, told complainant’s they get Dumas, Georgia. As took off to bank to drove lived merely two to show two the route thousand dollars to town directed colored was no Upon thousand dollars. There arriving at their destina- of travel. Gage got or circumstance manifested out the vehicle they recognized one availability girls; re- knew or check some on the another.; they were total but indicated turned and informed Gilmore and delay, strangers. and com- whereupon Gage Thereafter there be would plainant In returned from the bank to attend a left the vehicle restroom. two thousand refused to Gage, dollars and absence of co-defendant pay previously off the on the complainant girls bet lost informed were put money, grounds going Gage’s that he there wasn’t to take up Appellant and the bet made. going get of it the use of when some put up Appellant explained complainant asked that two three cards. to com- plainant and com- game played, thousand on a new bet how be dollars this”, “no, plainant replied in on put rag I’m not to-wit: would over up”. Appellant ing things re- complainant to mess whereupon appellant- assured appel- lose, peated four or five times appellant could that he could complainant’s get complainant get a lant resisted efforts would again, win *3 Gage for a minute to a minute and two thousand about showing for thousand dollars Gage Complainant a half. went to the mailbox and laid his two thousand dollars. complain- bet it and when the board threw letter into dollars on dash and newa complainant got appellant, appellant got began, appellant showing what ant around sequence complainant pulled the and him winning pick. of the arm to back lap pushed against building. right Gage to the and cards was left on of black, black, Ap- appellant caught Complainant and at- as red. taxi left. follows: complainant tempted throughout get Gage the to all the showed to right Gage present. Complainant red card on the extreme and time that was as plainant appellant pick reached to the red card and went the to await over to mailbox pur- postman’s pickup. Appellant his hand was either the made a knocked down accidentally posely phone complainant on the first card call told he had and to appellant; agreement being period waiting the that the meet his wife. to have up: opened thirty card first touched had be turned the to mailbox was about min- Gage grabbed money away, appellant Co-defendant the utes meet his but left to complainant Upon opening the card was turned wife. the of the mailbox before up complainant got perturbed Gage appeared and envelopes, at there some none six appellant but quiet complainant complainant’s tried to which were the self addressed down, saying write”, envelope, type “He can’t read or but there was a and similar get your money.” Appellant got envelope “We’ll placed kind of a “hold” and was envelopes complainant upon some and ad- An hour and this one. a half later envelope dressing complainant the Gage’s envelope to residence in viewed this the Georgia Bob, appellant post Colonel but main office and it contained a bunch of c/o jerked complainant’s envelopes money. it out up hands folded and no Com- you said your- plainant “no dern fool address it to testified on cross-examination that self,” whereupon complainant did so appellant you money put up you if said appellant took the two thousand lose; dollars appellant, again could not that placed money himself the in the self “you going you, are to turn the card I show envelope. dressed Gage insisted placing on lose”-, that.complainant placed cannot moneyed the envelope Ap- the mailbox. dashboard show. On for complainant elbowed -back all the complainant cross-examination further tes- time; assured, complainant, that is tried several appellant tified that him that get to Gage occasions to and relieve him of pellant, win,.that going appellant money, appellant, prevented it. complainant right would card to show All proceeded three men up complainant turn that mailbox in had nothing complainant’s truck, complainant driving, Complainant to lose. testified that his two appellant center, only and co-defendant thousand and it dollars was Gage right appellant. Upon part ar- wasn’t the stakes in the bet. riving mailbox, at the Gage getting Moisner, that he O. testified J. truck, out of the he complain- years, knew the seen for about nine shoving moneyed ant co-defendant, envelope Gage, down that he for about knew pants years; Complain- Gage underneath his shirt. four he knew lived got ant get out Gage whereupon he August San on or about Antonio stopped by appellant city in that and that he resided in this four kept pushing complainant years him, Complain- back. has known ant swapped told “I en- think he likewise Antonio for about lived velopes”, appellant replied years; swap nine “He didn’t the witness had seen envelopes, just keep together quiet”, “you go- Au- are having entitled The State of Texas 22, 1963, occasions vs. on numerous
gust
another;
McDonald,
said Ezell
McDonald
one
conversations
person
years;
same
was tried
nine
who
and con-
for about
witness knew Reese
22, 1963,
-6169,
he,
victed in said
August
had seen
Cause No.
prior to
numerous
said Ezell
was in said Cause
together
Reese
Gage,
legally
then and
Reese, appellant and
No. 6169
there
tried and
occasions, that
each
on said 4th
acquainted with
convicted
December
knew and were
all
A.D., 1960,
Burglary
of the said offense of
other;
Hicks knows
D. A.
witness
20, 1962,
night,
felony
and after
July
the said
that on
convic-
Reese and
said Cause No. 6169 and after
in conversations
of them
*4
he saw the two
judgment
witness, Henry
against
thereon had become final
one with the other. State’s
”*
* *
him.
Woekle,
appellant and a
testified he knew
14,
February
by
name of Reese on
man
Appellant’s
urges
able counsel
1962,
game
intro-
and that a card
his brief that the verdict is insufficient to
type
The
by appellant.
of
duced to
support
the judgment and the sentence
cards
played with two black
game was
pronounced thereon
reason
for the
that the
card,
card as the
with the red
red
one
jury
punishment
did not assess the
in the
card;
dealt
The
case.
record reflects that the
cards,
lost
and as a result thereof witness
stipulated
prior
his
counsel
as to the
next state’s
thousand dollars. The
two
felony
capital
for a
conviction
less than
witness,
Pape, testified that he met
Oscar
by
doing
necessity
so
9, 1963,
alleviated the
September
proof
prior
the state to
date;
submit
of the
con
met
same
record,
viction.
In this
we
game
a
witness to
of
introduced
a case
before us which comes under
pro-
cards;
players
three
that one of the
the terms of Art. 62 Vernon’s Ann.P.C.
illiterate;
the witness
fessed to be
unnecessary
jury
which makes it
for the
dollars;
lost one thousand
punishment
by
assess the
as it
is fixed
to make
self addressed
instructed witness
procedure
approved
law. This
has been
envelope
never received
but that he
by
State,
this Court. See
v.
Salinas
Tex.
witness,
money.
Arthur
letter or
Cr.App.,
trict Court of Nueces witness, objection Pape, state’s juris- Oscar which then and there had said Court being Pape, testified to cause, being diction the same num- transpired Court, sub- upon extraneous offense which bered the docket 6169 of said is sequent offense for room for voir dire examination” and date this approved by the trial which the tried. The court. testimony judge careful admitted trial this apparent original From this is appropriate limiting under an instruction did contain all of statement of facts its in- consideration appellant’s that which at trial and occurred alleged tent and scheme. The offense court this the trial cured omission send- allegedly
the case at bar was committed on ing facts of that this Court a statement of 22, 1963, August and the testified to event occurred, which from the omitted Pape place September witness took original statement of facts. 9, testimony 1963. The reflects an almost identical transaction to the one case position Appellant early Hennessey bar. The case of v. challenge our the second consideration of State, 215, Tex.App. sup- 5 S.W. statement of because it contains facts ports the action of the trial stipulation entered into counsel testimony. mitting Campbell Also see trial personally and in which he State, 163 Tex.Cr.R. 294 S.W.2d joined. argument appellant’s In counsel on *5 125; Cir., States, Roe v. United 5 316 F.2d appeal challenge validity does not the (1963); State, 617 Tex.Cr.App., v. Jones stipulation, merely questions but he our 310, 376 842 and 22 S.W.2d Sec. Tex.Jur.2d majority consideration thereof. The 201. that, though Legislature concluded the has by amendment not of Article 759a V.A. remaining The informal bills have been approval placed C.C.P. a time limit on carefully examined and reflect no reversible by court, of statements of facts the trial error. litigation effectively order be terminate only fore this Court will consider we those judgment The is affirmed. statements of facts which are filed with court, approved the clerk of the trial ON APPELLANT’S MOTION prior trial filed Court FOR REHEARING original submission on docket. our See State, 140, Selvidge v. 171 345 Tex.Cr.R. 523; Cunningham State, S.W.2d 172 v. MORRISON, Judge. 3, 37; Clayton Tex.Cr.R. 353 v. S.W.2d Appellant seriously challenges our con- 385; State, 595, 172 Tex.Cr.R. 361 S.W.2d stipu- sideration of statement of facts on State, Doby Tex.Cr.App., v. 363 S.W .2d lations filed this Court on which June 286; State, Tex.Cr.App., Hill v. 375 S.W.2d expiration days was after the 90 306; Seffens, Ex Tex.Cr.App., Parte giving appeal. orig- notice 376 S.W.2d inal statement of facts contains the an- Remaining properly we convinced that following nouncement that “the evidence originally, appellant’s decided this case mo- proceedings adduced and had in con- rehearing tion for is overruled. nection therewith” and concludes with the certificate, foregoing, “The above hav- WOODLEY, Presiding Judge (concur- ing been examined and correct found ring). ” * ** signed as the trial court was facts, question May
filed in this Court The státement of state- form, 18, prior agreed to com- ment of facts filed answer counsel June prise a true and correct statement facts originally, of this cause contains submission examined, approved filed stip- and ordered following that “the announcement judge, facts trial proceedings as the statement of ulation entered into and therewith;” dire examination of reflects after voir had in connection concludes panel (which March 20 ex- jury jury “thereupon, panel brought into court- transcript out) supplemental is animation not set and statement of approved by judge. impaneled sworn and on March the trial facts instructed the court counsel for agree appellant’s I not do conten- read the first count of the indict- V.A.C.C.P., tion that under Art. 759a read; de- ment. The indictment was amended, only could file such .pleaded guilty not and the wit- fendant facts, agree a statement of nor I do placed were under the rule. nesses approval time for the court’s of such a supplemental facts statement of ends with the'jury The evidence introduced before appeal. the submission of the is facts. shown said statement of None prior of such relates con- overruling appel- I concur in the alleged viction in the indictment en- rehearing. lant’s motion for punishment purposes. (It hancement of prior has been held al-
leged punishment under for enhancement of
Art. 62 or 63 element of the P.C. is
primary offense.) charge
The court’s made no mention of required finding such as to
conviction.- explained This accounted Appellant, GIBBS, Charlie Bradford subsequently supplemental tram-' filed *6 script showing that and statement of facts Texas, Appellee. prior, dire examination STATE voir permitted jury panel No. 37360. court, presence stipulate open outside Appeals Court of Criminal of Texas. jury, as to such showing the trial court received Dec. stipulation “the last count .directed: Rehearing Denied Jan. longer is no an issue of the indictment way any be alluded fact and will not presence jury, un- less, happen take the defendant should behalf,
the stand his own which event impeachment pur-
it would be available that,
poses only. But other than will jury or
be read to the mentioned
presence jury.” judge commended
The trial should be allowing to remove
possible prejudice by stipulations in ad- n it unneces- vance of trial which made
sary pass upon which was to guilt innocence be informed anwas ex-convict. stipu-
It is the the writer that the view of court
lation entered into before the prop-
instance counsel for
erly belatedly filed before this