*1 Rayson v. Marvin State Appellant’s (Without Rehearing No. Second 26,576. February Written Motion for Denied April Opinion) Rehearing 10, 1954 May 5, Denied R. Creighton, Wells, Favors, Stephen- Mineral Ennis C. ville, McDonald, Angelo, appellant. William C. San
Wesley Dice, Austin, Attorney, State’s for the state. Judge.
DAVIDSON, Upon appellant’s arraignment case it was learned indigent the trial court that he was employ and unable to coun- Thereupon, sel to in obedience to the mandate *2 4§4, P., of Art. C. process C. as well as the due clause of our Constitutions, State Federal appointed the trial J. Birdwell, Esq., attorney W. an County of Bar, the Palo Pinto represent appellant. affirmatively The record attorney reflects so pointed represented appellant upon After the trial and appeal given, after notice of had been Attorney Birdwell died. thereupon appointed The trial court at- torneys Creighton, Esq., R. County Bar, of the Palo Pinto En- Favors, Esq., nis C. Bar, County of the Erath and William C. McDonald, Esq., of County Bar, the Tom Green appellant upon appeal. before this court Upon appellant’s arraignment jury and before the was se- lected, plea guilty he entered a of to the accusation. After the testimony state had introduced its and while testi- fying behalf, as a witness in his own that he denied guilty charged per- crime and testified that another son, connected, with whom he was in no manner committed the crime.
Upon testimony evidencing appellant’s innocence, the plea guilty and, court withdrew objection over the appellant, plea jury. entered a of not proceeded The case judgment plea to final under the of not guilty, appellant being found of murder and the penalty death assessed. plea entered, After had been no effort was
made plea, the state jury, before the under that re-introduce that had been theretofore introduced state. Before The bar of this court at the submission attorneys argu- for position, by take brief oral
ment, judgment that the affirmatively of the trial court failed to reflect had entered before the prior guilty, only plea of not and that entered in
105 guilty, entered trial court which the the case was that not appellant. for the appeared the tran- of the trial as it clerk,
script duly corro- district certified borated and contention. sustained Counsel until insisted that entered, had no issue had been drawn before jury, and that it was incumbent the state to re-introduce entered, its had been 596, authority Essary State, under the R. Texas Cr. 927; State, Johnson v. 118 Texas R. S.W. S.W. Cr. 782; 2d 169. Gilford v. 115 Texas R. Cr. controversy presentation When the arose in the *3 us, judgment before peared state’s counsel as insisted that it transcript
in the copy inwas error and that a correct judgment of the which was entered in the case would reflect appellant did, jury empaneled, had been enter jury his thereafter, of before of —which pointed by court, changed as out trial to a
State’s counsel prepared asked for time within which to have supplemental and forwarded containing to this transcript court a copy judgment a certified request mentioned. This we granted. The clerk of the district court has forwarded to this court supplemental containing a transcript copy judgment a which he certifies as correct.
This did shows that enter his testimony. before the introduction of the predicate upon Inasmuch as the which relied was established, his contention is untenable. represented appellant upon who Counsel the trial of this case objection, record, made no so far is as reflected nor throughout any exception did he Consequently, take exception. us without bills limited, therefore, Our examination of the record is er- apparent rors from the of such nature their
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consideration would objection be authorized in absence of an exception. or
It is insisted that an such error is shown failure charge the trial court to submit to in his an instruction covering the law murder without malice. provisions 1257c,
Under C., of Art. A. P. a V. duty charge upon is under the murder without malice “where present” charge upon the facts necessity that issue. No arises to present murder without if malice the facts fail to issue. 552; State, Leza v. Texas Cr. R. Tebo 712. Texas Cr. R. S.W. 2d killing purpose a for the of rob- state’s shows shooting benefactor, by (a bery by appellant hitchhiker) robbing body, placed pistol. a After three times dumped subsequently in an out-of- it in the automobile it. facts are shown the-way place an endeavor hide Such supported appellant and confessions of the two written corroborating facts. an abundance testimony presents which no or circumstances The state’s malice, all require murder without would justification without a deliberate shows robbery. excuse, perpetration committed in the behalf, appellant denied that own As witness *4 He he fired the fatal shots. said that killed or that the deceased and a whom he did not know deceased was killed man the passenger with deceased when a in the automobile who was being picked up. Appellant present the time at was admitted body. assisting disposing subsequently killing, shooting however, denied, the actual connection He robbery body. facts stated He denied the truth only signed the confession and insisted that in the confession story his and that the. would not believe officers because mercy plea making in his of the confession would assist was jury. murder He that at time the insisted in- and under influence committed he was intoxicated toxicating liquor. Rep. 648, 216 holding case, 154 Texas Cr.
Our Cassell 813, appears point. In that the state’s to be extenuating cir- with no a malicious showed held that of alibi. We cumstances. The was that defense that not raised and no was murder without malice issue of reaching necessary. In con- charge upon subject was clusion, we said: present place of the commis-
“If was at time offense, acquittal alleged to an he was entitled sion of the without malice.” a the law of murder not to on legal case. no distinction in that case the instant seeWe confessed, Appellant guilty, or he was not was either as he guilty, principal. aas agree are failure constrained trial court’s We charge upon murder without malice was not error.
Complaint is made of the over trial pellant’s objection, plea withdrew the and entered for plea guilty. a of not Appellant insisted that under a before the receiving punishment chance of less than death was greater than under a of not It is reason thereof injury. that he claims testified,
When insisted that he was innocent and so the mony requiring was under the burden that the testi- changing be withrawn or of jury. Burks Texas R. Cr. page 165 S.W. 2d at 463. no testimony. made effort to withdraw the testimony, In suggestion made some confessions offered in evidence freely state were not voluntarily made but were result of fear and mental agree, however, coercion. We cannot sufficient, law, aas matter of to render the confessions inadmis- sible. Appellant raise, here, seeks to question as to the ade-
quacy representation that he received at the hands of his *5 appointed counsel, and, connection, in that calls attention to what guarantees he asserts were denials of constitutional as upon well as errors committed the trial to which his counsel registered should have objections.
Appellant object insists that failure to lack so evidences ability experience part properly on the of his to counsel represent adequately duty court, The of the trial under the mandate Art. P., C. process, appoint as well C. as that of due to counsel for an a capital appoint- accused in carries burden ing competent is, ability counsel —that counsel of sufficient experience S., and defend accused. Crim- 23 C. inal Law, p. 325. finding appoint- not warrant
The instant record does experience possess ability and referred did not ed counsel to in rule stated. attorneys who, compensation, ably without have so
To those preparation and oral appellant of the brief represented argument express deep appreciation. court, our we error. The does not reflect reversible therefore affirmed. The Opinion approved by the court.
ON FOR REHEARING MOTION Judge. Presiding GRAVES, rehearing presents proposi- for
In motion two hereof, being upon requests a which he reversal the first set tions original opinion and in forth based arraigned beginning was of this cause arraignment according records, on his the pleaded evidences the fact pres- person open also appeared in court and counsel was trial, ready ent, parties and after both had announced arraigned having having duly defendant theretofore indictment, thereupon pleaded was admonished plea, persisted consequences and he of his pleading guilty, and entered record here- the said was in as defendant. took the stand
It is also shown thereafter things, testified, among as other in his own behalf and driving highway public from Mineral Wells out on the *6 something Temple, became the matter with his car which he engine friend; from a that while the would run had borrowed looking so; try- would not do while the car that at car going ing remedy up trouble, who two men drove were to They stopped in another and asked him what was the direction. They eventually with the found that matter car. car would not run rode and offered him a ride with them. He with them pistol pocket for a short distance. had in his which he He They buy failed to offered to sell the men. looked at but Desiring himself, they stopped same. to relieve car he walked around to the back thereof to urinate while there up he heard He that one of three shots. looked and saw him; inmen the car had shot the other soldier and killed got remaining Eventually he then back in the car. he and the pasture away, pulled soldier drove into a a short distance there; dead man out and left him he and driver of the Temple; they car then turned around and started back to through towns, stranger car, driving went different they got Temple. Appellant until took the close then wheel they Temple. both drove into He let the soldier out on Temple again Sixth at Street him was to meet there in 10 or pick up; 15 minutes to that when came back two approached interrogated him; again officers requested him and that he urinate;
to be allowed to one officers took away, him a to escaped short distance and he from him and went Bartlett, Texas, stayed time, having period where he for a changed Temple. at his clothes home On the third fourth day brought apprehended thereafter he was at Bartlett and back. confession, containing many He then pages, made a full rela- tive entirely to the which statement was different from testitfy one that he made He did stand. attempted wipe some of out of the car in which the blood apprehended Temple, he was at had suc- but that he not been cleaning cessful in it. stand,
In the own statement on the he never approached making matter; merely principal himself position accessory crime, reaches the of an if at reached all. He could not convicted on the indictment under be herein only accessory. facts which showed that he was an complaint this motion occurred following manner: After to all these had testified facts and had rested his the court said: Marvin, up just a “THE stand minute. COURT: When the morning yesterday presented you indictment was in this Court entered a contained herein. Yes, sir. “MARVIN RAYSON: *7 “THE You taken witness stand and said COURT: have Layton; you Corporal person did not kill that some other charged. you you persist in did the act with which are Do still your plea guilty? part. I didn’t understand that
“MARVIN RAYSON: say, you persist your plea “THE I in do still COURT: guilty? mercy Guilty and ask for the
“MARVIN RAYSON: Court. somebody you else
“THE man or did COURT: Did kill the kill him? I didn’t kill him.
“MARVIN RAYSON: right. may I withdraw All You sit down. “THE COURT: plea for him not plea of and I enter a will this man’s Attorney.” may proceed, guilty. You Mr. District testimony that the court withdrew It evident from the is pleaded appellant’s plea proceed- motion that this It ing contended is causing great weight part court had penalty there- fix death because withdrew herein plead candidly them and stand from his effort to before mercy request court. them the We to this offense procedure other that we are unable see confess court appellant’s followed, especially testi- have could repeatedly killed de- mony denied that he killing. anything are do with the ceased or that he had We argument presented to us to the wonderful brief indebted represented court-appointed counsel who appoint- appeal only. are convinced on this We ability experience, attempted, of his ed counsel best throughout Believing proper disposition to have of the case rehearing original opinion, there- the motion for made fore overruled.