*1 questions were It should be noted that the faith, the father asked in because objection was sustained
stated before the compan-
that he named knew that the two
ions of had been so convicted. introduced
In view all this evidence appellant’s associa- objection
without toas characters,
tion with we are bad asking
find instructed
questions jury were an- to consider
swer. support sufficient no reversible
pearing, judgment is affirmed. PIZZITOLA, Appellant,
George
The STATE Appeals of Texas. of Criminal
Nov. 1963.
Rehearing Denied Jan. Sr., Scott, Scott, H. H. William
'William Houston, Jr., Atty., Dist. Brough, Dally C. Asst. Leon Austin, McDonald, judge. See also charged by separate
Appellant was com- information, two plaint with *2 offenses, by agreement of the meanor after conviction, and final done in Al was parties at one was the court corta v. Texas, tried before State of under time. In Cause No. This does not alter time, con- was appeals consideration at this he fact that from are convictions assault, to be victed decided from trial meanor, punishment of court procedure and provided by days statutes of this state. In addition to the statutes referred to with The cause is before this court our original opinion, we direct attention out a statement of facts of Arts. Ann.C.C.P., Vernon’s trial, consequently, the
adduced on the part: read in before sufficiency of is not trials, this court. “New felony, cases of shall granted be causes, pleading to There is no verified and for no other: counsel, ex support proof of denial of “1. Where defendant has been ception mo overruling an unverified absence, tried in his or has denied on tion for new considered trial cannot be 753) counsel.” (Art appeal though trial court State, 166 evidence thereon. Thomas v. “New may trials in misdemeanor cases 741; Barnett v. Tex.Cr.R. 316 S.W.2d granted be specified cause Tex.Cr.R. article, except preceding that con- tained in subdivision one of said arti- counsel, Appellant represented by was (Art. 754) cle.” record, matter from March trial first motion new his amended Under these statutes trial court signed attorney, his This was filed. did not err overruling the motion for days given appeal before notice new counsel, trial based lack of this April excep- on 1963. A formal bill of being a misdemeanor case. tion could have been filed within 90 given. appeal from date notice In the of the serious conten 760d, Article Texas Vernon’s C.C.P. tion that represent lack of an in digent defendant misdemeanor case nothing This court is thus left with denial of a fundamental under the to consider relative the trial de court’s Fourteenth Amendment of the United nial of motion for new trial. may Constitution which be raised conviction, after we appel will discuss the error, judg- reversible process. lant’s claim denial of due of the trial court affirmed. ment trial, motion for new APPELLANT’S MOTION ON testified that he had been on bond for FOR REHEARING preceding trial; three months date of bondsman; was his mother WOODLEY, Presiding Judge. attorney never bond, called while on request to made no the trial court appellant urges we were er- inform did trial holding that his claim of ror in funda- that he was unable to In deprivation of counsel was mental addition, the record reveals that agree. us review. We do not not before represented by counsel of his own process It is true that a denial of due choice on his motion for new trial and on urged by appeal in the may be raised attack collateral Appellate that the recent was before urges California, Superior Department,
of Gideon v. People *3 799, year v. 792, applicable during to the the L.Ed.2d is S.Ct. 9 Agnew, 841, P.2d Cal.App.2d Supp. such case 250 not construe instant We do case. 369, opinion and the their based to embrace the misdemeanor Court the fore- held there in view of the Federal Constitution and that especially This is so being was no distinction between misdemeanors Such going facts and circumstances. right case, right felonies the to have counsel the a constitutional as no denial of appointed. to counsel is shown. The the Su- was also before over- rehearing is Appellant’s motion for preme Maryland 1961 in Patter- Court of
ruled. 194, Maryland, son v. State 227 Md. of no A.2d held 746. In that case Court MORRISON, Judge (Dissenting). by reflected the court’s original opin- refusal to counsel in a misdemeanor our Since the rendition of punishment by confine- ion, several called to my attention has been appoint ment. the Patterson case reached When which the failure to cases hold that charged Supreme of the United States accused indigent counsel an Court Warden, (which provides (Patterson of v. writ certiorari with a misdemeanor 776, Penitentiary, a Maryland raises jail) punishment confinement 1103, 137, judgment fol- question. favor I would constitutional S.Ct. case remanded to the Fifth Circuit was vacated and the reasoning of lowing the States, Supreme Maryland further Court of v. United in Glenn pub- v. 536, they “The consideration in the of Gideon wherein 303 F.2d 792, 335, legal obliged to furnish free U.S. 83 S.Ct. lic is Upon remand, Supreme earning sufficient L.Ed.2d 799. who is a defendant own”, Maryland that but find reversed provide Court income of 237). (231 appellant testified Md. 191 A.2d at bar counsel, that he had waiver majority relies made unemployed time he from the been request appointment of coun- failure to he was and that when until the trial bond Su- this conviction. sel affirming employment, “relief it was gain able to struck preme of the United Court offered on “the boats”. State work” reasoning re- in the to such knell death no evidence rebuttal. Cochran, Carnley of cent case early L.Ed.2d wherein Supreme Court Indiana as they Constitution said “that in Bolkovac v. Ind. as 1951 proceed- against grants protection criminal recognized such rule and re- 98 N.E.2d ings without assistance of conviction where the a misdemeanor versed ‘whether or must be furnished punishment at 180 counsel requested appointment of jail grounds that the the accused on the deprived Uveges v. Commonwealth counsel. accused had been 437, 441, 69 S.Ct. Pennsylvania, 335 U.S. opinion based their ” further 127.’ The court L.Ed. upon their State and the Federal Consti- tutions, recognized “Presuming from silent though they waiver stated The record must Supreme impermissible. of the Court United States allegation passed show, ques- or there must be at that time had not show, that an accused necessity constitutional tion of the intelligently and under- indigent for an counsel but pointment ac- offered possible punish- Anything less standingly rejected case where the offer. cused ment was confinement in is not waiver.” above, myself Mauzy bring Mauzy, by Mauzy, In view the I can D. & B. Hous- appointment ton, conclusion hut other indigent in misde- of counsel for accused punish- possible where meanor cases White, Dally, Smith, Jr., I. and Bill mandatory jail ment is confinement in Asst. Dist. and Leon inter- Federal Constitution Atty., Austin, preted by Supreme United States. *4 BELCHER, Commissioner.
I respectfully overruling of dissent to the appellant’s rehearing. assault; motion for conviction is for punishment, thirty prosecutrix February testified that on male, she saw the an adult restaurant,
in her mother’s and after leav- ing the restaurant between 10:30 and 11:00 p. ap- m. her automobile she noticed the pellant her a truck. She WELLS, Appellant, Lonnie Gwin stopped telephone police booth to call appellant officer and at this time the drove STATE up, booth, came to the door of the and told her go she had to with him. When the pellant would not let her out the booth Criminal of Texas. promised she to meet him later. Prosecu- trix further testified that Dec. leaving the telephone stopped booth she for a traffic Kehearing Denied Feb. appellant approached car, her
opened door, her, grabbed pushed her leg, body hands, over with his and sat seat, put down on the his arm around her her, kissing started at which time she telling him to leave her alone and on, go,” “Go let me appellant then the left. police
A officer testified that he saw the appellant quarter about to a third of a truck, block behind the prosecutrix, in his alleged after the incident. testifying in his own be-
half stated that had stopped aat tele- phone seeing prosecutrix booth therein to if any ask she needed late, hour but never assaulted her night manner. wife testified that she conversation between prosecu- the' trix and the over an extension subsequent telephone to the date of the charged, offense but the substance of such