*1 question, Bartlett, 421, stated that such a statement would immediately following resided his home be admissible. marriage against his whom he bore Finding no reversible appearing, will, ill no entered his home unannounced night question, on the turned light kitchen and remained silent when
appellant “get demanded that he out of * * * and come back to door
and knock like a man should.” rapid
further admitted fired three
shots at Bartlett who was unarmed and had PROCELLA, Appellant, gestures prior Gerald toward him to the shooting. testify didHe thought that Bartlett anything intended to steal from The STATE of him, did state that Bartlett was under
probation for theft. Appeals
Court of Criminal of Texas. caution, Out of an abundance of 1965. jury instructed the to ac Rehearing Denied Oct. quit reasonably appeared appellant it Bartlett was the act burglarizing Rehearing Second Motion for Denied stealing and further Dec.
charged on the defense his
house and his eject an intruder
therefrom. resolved such conflict as there against appellant,
we find evidence sufficient
the conviction. appeal sought counsel on
to raise his brief the
competency appellant’s trial counsel. have, as did we in Williams v.
169 Tex.Cr.R. examin light
ed facts in the
contention and concluded that fully protected.
rights were
Though brief, not raised do we trial counsel ob
observe
jected Bartlett’s immedi
ately prior told shooting to the
him “I have shot a man before”. While behalf, appellant ad
testifying his own prior he had shot another man
mitted that shooting injured party this case. this may, holding
Be under in Carrier v.
des, Attys., Houston, and Asst. Dist. Atty., Austin, for State.
WOODLEY, Judge. malice;
The offense is murder with punishment, life. companion case to that of State, Tex.Cr.App., 382
Graves
(cert. denied).
confessed
orally
at the time of
the' driver
the automobile
planned
robbery;
they only
him;
they
rob the man and not to kill
Phillips,
on the radio
heard
that Mr.
they
they knew
dead and
deceased, was
pistol
get
and that he threw
rid
subsequently
bayou.
pistol
into
place that had been
by
a diver at the
pointed
appellant. Also,
finger-
by
out
print
bag
motel
paper
left
little
as the
Graves
identified
finger print
appellant.
of the
only allegation of the motion for
relating
to misconduct
new trial
predi-
which a
could
reversal
have
cated
to a statement
relates
the other
toGay
made
would
jurors
the defendant
effect that
penitentiary sooner
out of the
definitely get
on a
life
than he would
sentence
'
year
twenty-five
sentence.
new
that the
The motion for
and the
out
set
deliberating were
receipt of evidence while
completely supported by the
further
his counsel
will be
“and
Gay,
V.
C.
the sworn
of Juror
upon to
be called
and when he should
the truth
verify and substantiate
facts.,”
above,stated
for
on the motion
set
affidavit:
trial the
new
during our deliberation
“At no time
Houston,
appellant.
O’Dowd,
W.
John
consideration
length
my knowledge,
jurors, to
Briscoe,
E.
Atty., Carl
F.
Frank
Dist.
have to serve
time
defendant would
Zgouri-
Dally,
Louis
Gus
W.
White
J.
juror and which had been
life sentence.
and another
penitentiary because of the
upon order of
fact of
had been cancelled
not discuss nor consider the
served
We did
parole
possibilities
and the witnesses excused.
serving
or the
longer
shorter
period
of time than
by the
The evidence that was heard
*3
punishment assessed.”
hearing
on the motion for new
the
upon
of whether
trial was not
the issue
Vyvial
It
been the
has
rule since
v.
misconduct,
alleged, but
there was
as
State,
111
Tex.Cr.R.
that
upon
the
of whether the trial
improper
a motion alleging
something
in
the
and re-
excusing
had erred
witnesses
transpired
jury room,
in order
to
support
fusing to hear evidence
pleading,
sufficient as a
must be
allegations.
by the
of a juror
affidavit
or some other
person
position
who was in a
the
know
In the absence of
verification
State,
facts. See Brown v.
allegations
made on information and
267 S.W.2d
822 and cases cited.
belief and of the affidavit
informant, we
no merit in the conten
find
Where the motion before the court
undisputed
tion that
show that
it was
deprived
of his constitutional
supported by
not
requisite
affidavit of
impartial
to a fair and
because
trial
jury,
member
court’s action
during
the jury
their
overruling such motion for new trial at
pres
free,
deliberations or to a
and full
fair
stage of the
could not be as
support
of his
entation
evidence
of his
signed
as error. Vowell v.
156 Tex.
allegations of jury misconduct.
Cr.R.
part of judge. considering Juror upon hearing set for on the mo- Hearing was had the motion announced tion for new trial because the same was new trial. counsel proceeded III, prove the sub- taken before S. Maida an Assistant ready and Joe poenas Attorney participated he had to issue for the District caused is trial. Reliance had Melton v. 539, 182 Tex.Cr.R. which holds S.W.
that an affidavit taken before the State’s
counsel should considered
court when on motion hearing offered at
for new trial. at the When swore appel affidavit made untrue, such lant’s counsel was attorney No of record on rendered motion for new *4 Austin, Atty., and under the for the State. State, supra, announced in Vowell v. overruling and the action of the court McDONALD, Judge. Presiding stage the motion at error. assigned could not be County appeal Court an order County El from an Paso Law rehearing is over- motion for Corporation dismissing appeal from the an ruled. vag- City of El Paso from the Court imposed. A fine rancy case with $200.00 con- proceeding is concise facts. agreed statement of tained Corporation Court The bond from the complywith because it did not was defective Ann.C.C.P., terms of Art. Vernon’s requiring double the amount fine, appeal dismissed. and was day order, May, Appellant, by on the 5th Appellant, ABEYTA, Raul days to file a corrected ten mailed to copy order bond. The STATE May On appellant’s counsel May appeal dis- day of the 25th corrected bond had missed because no filed. Appeals of Texas. of Criminal to set 3rd a motion Nov. This was filed. aside the dismissal order denied, appellant appealed. V.A.C.C.P., Article
Under bond, days ten for new allowed complied with. the terms were reason- of the order were think the terms C.C.P., ap- Article able. Under days appeal to file a pellant has ten after statutory time the time al- bond. The complied were not with. lowed the court dismissing did not The trial court err