Saxton v. State

SAXTON, Appellant, Lee Jessie Texas, Appellee.

The STATE

No. 1404-89. Texas, Appeals of

Court of Criminal

En Banc.

Feb. (on

George Delaney, Janet Morrow J. Houston, only), appellant. for appeal Holmes, Jr., Lin- Atty. Dist. B. John West, Houston, Atty., da Dist. A. Asst. Austin, Huttash, Atty., Robert the State. PETITION FOR

OPINION ON STATE’S DISCRETIONARY REVIEW MILLER, Judge. by a

Appellant was convicted 19.02(a)1, murder, Code V.T.C.A. Penal punishment at judge trial assessed and the De years the Texas confinement partment of Corrections2 restitution firearm, charged indict- use of a two theories of was indicted under murder, (2), 19.02(a)(1) ment.” verdict, charged pursuant to both theories. The however, Jus- only Department Criminal general called Texas and states 2. Now tice, Division. appellant guilty Institutional "of murder with found $1,300. appeal, ap On Appellant direct stated that the deceased was peals found the evidence insufficient very angry, threatened kill him and support the conviction because the State lunged, Appel- the that when deceased disprove appellant’s failed to defense of frightened safety lant for the of his was a reasonable doubt. himself. family and He reiterated (Tex.App. Saxton v. 776 S.W.2d 685 terribly he afraid and his state of was 1989). appel —Houston Dist.] [14th ‘totally When mind was fear’. asked late court therefore reversed appellant’s why people at the it was an he told scene conviction judgment and rendered a of ac accident, Appellant I responded, ‘Because quittal. granted Id. at the him, to kill didn’t mean I didn’t want to petition discretionary review him, and I I kill felt like that I—when determine the appeals whether court of got gun, like went and the I felt in finding erred the evidence was insuffi maybe that would him leave.’ make (6). Tex.R.App.Proc. 200(c)(5) cient. and Appellant did not when he remember We will reverse and remand. pulled actually trigger the because Appellant only eyewitness was fast,’ ‘[ejverything happened so but stat- offense, than deceased ed ‘knew he he was close because he was Appellant course. guilt/in- testified at the process coming me ... reach- trial, phase nocence quote and we lib- shooting for me.’ After he laid erally of appeals’ summary from the court gun on the coffee and went to table testimony. of his tell to call police his wife and ambu- [Ajppellant testified that he invited had lance. the deceased over for a drink and after a patio

few drinks on rain began it Id. at 686-687. they and into living moved room. gun Other evidence established that The conversation turned to a mutual for- recovered at the scene fired car- had one girlfriend, mer Hoge, Diane de- tridge under the hammer five unfired agitated. ceased Appellant became testi- rounds. A firearms examiner testified the fied get that the deceased continued to type used in weapon this offense had a belligerent, (sic) more and more refused “light” trigger pull, fully must be cocked although leave the house Appellant fire, order to and had a safety mechanism repeatedly him Appel- asked to leave. Also, which had to be released to fire. lant continued to ask him to leave investigator crime scene stated fired picked up pistol then his bed- through bullet entered the deceased’s that, room. thought maybe He stated T chest, through exited his back about five leave, that would convince him to ... and neck, nape inches below of his he just kept getting wouldn’t. It worse.’ through travelled A ceiling. chemist Appellant sitting on the loveseat in appel- testified there a bullet hole pistol with his in his laying hand his pants leg lant’s and the weapon was within right leg. He testified the decedent pants A photo- foot of when fired. ‘kept him, easing walking toward’ be- graph appel- into admitted evidence showed tween the other sofa and the coffee table powder leg. lant on his sustained burns suddenly lunged Appel- and then he The medical examiner stated the deceased continued, Appellant lant. T think don’t single gunshot was killed fired at he meant over to come the coffee table. heart, range, penetrated close I think he meant to kick it out of liver, right diaphragm lung, and also way, and I can’t remember he whether that the deceased had a blood alcohol level literally way kicked out of the or in According of .347. to the medical examin- process lunging at me that he hit the er of the leg.’ path bullet was consistent table with his estimated position appellant’s with account of the the deceased was about feet five lunged weap- from him his when he and stated that and the deceased’s bodies and pistol he did not aim fired. on. record, upon by the court which was also relied of the full

On the basis 2.03, failed to appeals held the State this case. Section entitled Defense, entirety: self-defense. provides refute defense of in its reasoned appellate at 688. The Id. (a) A for an defense pursuant Penal Code that to V.T.C.A. code is so labeled offense in this State, 2.03(d), 709 Guilder v. Van prosecu- phrase: “It is a defense denied, (Tex.Cr.App.1985), S.W.2d 178 cert. tion....” 2891, 1169, 476 U.S. 106 S.Ct. 90 L.Ed.2d (b) attorney is not re- prosecuting The (1986), v. 588 S.W.2d 978 and Luck of a quired negate existence de- denied, 446 (Tex.Cr.App.1979), 371 cert. charging in fense the accusation commis- 2171, 944, L.Ed.2d 799 U.S. 100 S.Ct. sion of the offense. (1980), met his bur once a defendant has (c) of a issue of existence de- The producing den of sufficient evidence to fense is not submitted to the unless self-defense, the raise the defense of State supporting evidence is admitted de- required beyond is that defense fense. appeals The court of a reasonable doubt. produce required therefore the State to evi (d) If of existence of a the issue beyond a reason dence which established jury, defense is submitted to the act in doubt that did not able court shall that reasonable Saxton, at self-defense. 776 S.W.2d requires that the doubt on the issue de- of (emphasis original). ap The court acquitted. fendant be however, noted, appellate

peals that for an (e) penal A of defense in a law ground matter that court to find as a of law is in accordance plainly that labeled self-defense, defendant acted evi procedural has chapter with and this no dence must be uncontradicted and issue consequences of a defense. evidentiary presented jury’s for the determina thereon is to the issue this cause subsec- Critical Id., citing tion. v. Jenkins (d)5, meaning accompanying and tion its 435, (Tex.Cr.App.1983).3 The procedural requisites, any. appeals of found that the failed produce evidence to refute Luck, appellant contended the In of “all of claim self-defense erroneous it did because is uncontradicted and is consistent had that the State not instruct self defense.” Id.4 with doubt disprove beyond a reasonable recognizing of After decision, issue self-defense. In reaching ap its is a defense under Penal language self-defense peals relied on in this Court’s Code, Guilder, 178, applicability noted the Court decisions in 709 S.W.2d 2.03(d), Luck, 371, discussed, reviewed Practice Commenta- 588 S.W.2d quoted among things, ry, Penal therefrom: other Code § proposition trier of fact's determination quotes this of law from for the 3.Jenkins 101, "beyond doubt” is the and that a reasonable Parkman v. 149 Tex.Cr.R. 191 S.W.2d required proof, this we disavow lan (Tex.Cr.App.1946), Parker level which relied on (Tex. sufficiency guage of the evidence context. Tex.Cr.R. pp. 913-914. Cr.App.1939), discussion and Patton 129 Tex.Cr.R. infra (Tex.Cr.App.1935),as 86 S.W.2d 774 author holding implicit ap- ity. The appellants in both Parker Patton pellant "as a matter of law” he established claimed evidence was insufficient to sustain is See fn. acted in incorrect. they self-defense their convictions because acted self-de addressing sufficiency supra. fense. issue in stated, Patton, 86 with S.W.2d any authority, this Court obvious, overstating we note cite to order for this 5. At the risk of out that “[i]n the Penal that self-defense is defense under court to hold as a matter law that the accused thus, Code, and, self-defense, applicable. testimony 2.03 V.T.C.A. acted in on that issue Likewise, a defense to no Penal 9.02 states “[i]t must be uncontradicted." authori Code Parker, justi- question is ty proposition prosecution the conduct in cited for provides chapter.” question 9.31 S.W.2d at Given fied under this Section justification. acted as a whether the accused in self-defense (d) peals is to “the State must “... The effect Subsection concluded require the to disprove beyond state a defense which establishes a rea- is- after the doubt sonable doubt that did not act properly sue been the evi- has raised Saxton, self-defense.” dence. added). (emphasis find that the court producing has the burden evidence to 2.03(d), Luck, appeals, by relying on § raise a but the has Guilder, and Van utilized incorrect the final dis- sufficiency standard of review prove it.” the evidence when defendant raises Luck, 588 S.W.2d at 375. The held defensive issue. jury charge no error was shown in the the its correctly As State asserts in charge, the because when viewed as a brief, 2.03(d) ad Penal Code and Luck § whole, properly placed the burden on the jury charge8 dress the mechanics the beyond State to show a doubt proof vis-a-visthe State’s burden of when a appellant acting the was not in self-de- by defensive issue has raised the evi been Guilder6, fense. Id. In the Court Van sufficiency dence rather than the the evidentiary addressed the standard for an 2.03(d) Arguably, appears evidence. § the an review defendant has raised where impose directly a on the burden State discussing affirmative the defense. When trial, refute a defense raised at and dicta proof defendant’s burden of af- to an certainly sup both Luck Van Guilder firmative defense under Penal Code 2.04(d)7, port proposition, the such a the Court noted that but Practice Commentary 2.03(d) and other case [2.04(d)] very This burden is different First, law indicate otherwise. the required Practice of all other defenses Commentary points out specifically are not defined as af- that the State has firmative defenses in disproving the Texas Penal the burden of the Code. the defenses burden of p. evidence of self-defense. See su producing evidence is shifted to the de- pra. production, is That not a burden of However, fendant. after he has met this i.e., requires one which the State to affirm of production, the State must dis- atively produce refuting the self- prove allegation the beyond a reasonable claim, defense but requir rather a burden 2.03(d). doubt. Tex.Penal Code Sec. prove the its case proof required This level of is not Secondly, reasonable doubt. im and more State in affirmative defense cases. portantly, case law us instructs Guilder, Van Citing at 181. is an issue self-defense issue of Luck, Guilder, ap- by jury.10 Jenkins, determined cause, by 6. Van Guilder was overruled this Court in this the trial instructed (Tex.Cr.App. jury Meraz v. alleged 785 S.W.2d on both theories murder 1990), which was delivered after the court of indictment and on the issue of self-defense and appeals’ burden, decision corresponding case. Both Van Guilder State's accordance 2.03(d). and applicable addressed standard of review Meraz with § determining whether a defen- 9. It is now axiomatic that the dant an "defendant has had established affirmative right opinion adopted every to an on de- affirmative instruction the correct Meraz standard. by fensive raised evidence whether appeals Court determined the court of is produced by constitutionally given evidence is defense, the state or authority deter- feeble, strong jury finding against whether it great weight is or whether mine if a is contradicted, V., unimpeached it is preponderance or whether it of the evidence. Art. Meraz, conflicting.” e.g. is See v. Ramos Tex. Const. 785 S.W.2d at 154. (Tex.Cr.App.1972). S.W.2d 102 2.04, Defense, provides 7. Section Affirmative pertinent part: dissenting opinion 10. Justice Junell’s (d) correctly very the issue appeals espouses If existence of an affirma- court of point. Saxton, jury, tive defense is submitted to the the court S.W.2d at 689. also prove agree shall opinion that the defendant must with Justice Junell’s that "there preponderance jury affirmative defense was a fact issue for ing determination concern- deadly evidence. in fact whether believed pocketknife a closed except for 438, citing 546 deceased v. Silva S.W.2d Appellant pocket. in his also (Tex.Cr.App.1977); Sloan which S.W.2d kill (Tex.Cr.App.1974); not intend to he did stated that gun got the he went and deceased but that and Puckett Defensive make the deceased leave (Tex.Cr.App.1982). hoping that would physi- merely is consistent with which firearms examiner testified his home. The alleged the scene of single cal evidence at alleged weapon was murder render the offense will not weapon meant the .44 action caliber determina- credibility insufficient since fully gun had cocked hammer on the to be within the solely tion of such evidence police told fire. also in order to free to ac- province and the jury’s an shooting that the acci- at the scene evidence. A cept reject the defensive facts, we On of these hold dent. the basis implicit finding guilty verdict found be- could have rational theo- rejecting the defendant’s self-defense against appellant doubt yond reasonable Jenkins, ry. issue. In other sufficient, the evidence is Thus, we conclude finding in the evidence insuf- appeals erred Luck, and relying in on erred appellant’s conviction. support ficient to creating a bur- thereby and Guilder in production for the cases den of State the State’s Accordingly, we sustain presented evidence is where defensive judg- and reverse ground for review sufficiency of the evi- addressing the appeals. remand ment resolving In support a conviction. dence so that it this cause to the issue, we sufficiency evidence remaining points of error may address presented not look to whether appeal. appellant raised on direct which appellant’s self-de- evidence refuted which determine testimony, fense but rather we J., MALONEY, participating. not in viewing all whether after CLINTON, dissenting. Judge, prosecution, light favorable to the most fact have found any trier of would rational palladium by “that Trial well be beyond a of murder the essential elements alas, but, jurors not all are liberty” of civil and would have reasonable doubt also infallible. against appellant on the found Pe- beyond a reasonable doubt. See I. 2.03(d); Virginia, nal Code Jackson proved L.Ed.2d 560 that 443 U.S. 99 S.Ct. 61 facts show “When the (1979); necessary S.W.2d 234 in Butler v. committed homicide was appeals’ exercising The court of (Tex.Cr.App.1989). legally while self-defense and review was failure to use this standard of right, not authorized to error. convict the accused mur- arbitrarily manslaughter.” der review,

Turning sufficiency (2d Ed. Annotated Penal Code well as add 5 Branch’s pertinent reiterate facts as we 1956) 399, 2085, citing cases from Smith previously Ap discussed. other facts not (Ct.App. Tex.App. trigger on pulling pellant admitted 1884), him, through Middleton v. lunged at weapon when the deceased (1944); 146, 179 S.W.2d 510 ac and, prosecu Tex.Cr.R. by on cross-examination Penal Statutes tor, Texas Annotated shot unarmed man. cord: he admitted he Ed.1974) 347, (Branch’s n. I.1 fact, on the 3rd weapons were found no Court, Judge posed and an- immediately necessary protect Hurt him- fense force was pertinent questions, against attempted swered use viv victim’s] self use or [the deadly bring Id. force.” in case "Do facts not the clearly fully the rule within [of defendant not, possi- is it If discussing stated above? supra, defense] self 1. In Smith v. The after make the party accused of murder aspects of ble law and relative self-de- we an 1884 of the in Thus find statement those cases and others accordance with proposition by recast in it.2 later Jenkins v. recently terms in iterated Park- Indeed, in writing for the Court (Tex.Cr.App.1987), man, Judge Lloyd Davidson was not con- Parkman, excerpted it from a 1946 controlling “the merely tent state rule” opinion of turn the Court in cited two and cite Parker and Patton. He went on supporting opinions of the Court: Parker genesis opin- find real its the seminal Patton 1935. Notwithstand- Smith, supra, Judge ion Hurt ing impressive authority, line of light, examined the evidence views Patton as the genesis 744-746; rehearing Judge S.W.2d at citing

the rule and faults the Court for not also, id., Yet, Graves the ma- did Parker, any cases in it and on that Parkman, Parker and Patton jority treats perceived omission determines to “disavow vacuum, only disregarding their language sufficiency ante, see precursors, ignor- also Opinion, context.” n. 3. followings their in this Court.3 Manifestly, That Court considered the rule valid the rule still “alive and Jenkins, simple Judge viable is demonstrated Teague properly well.” Park- light worked under and decided examined evidence in protection, notwithstanding rule the verdict and cited ante in note 1. 179 S.W.2d at 513- jury? completely dissenting opinion of the Or is this within Compare Judge rule jury, the control to be extended or with- Graves: pleasure, held at their “My brethren sum have held that the total may? what it We are of the testimony inescapable of this leads to the opinion that the evidence in this case fails to that the facts conclusion uncontradicted show murder, but, guilty show the defendant perfect a case self-defense under law. contrary, possible, such be if makes case beyond any question, of self-defense sort of circumstances, willing Under these I not am sup- and that the verdict of the is not say as a matter law these facts make ported by the evidence." perfect a case of If the self-defense.... facts Id., (All emphasis throughout 346. at here and by appellant undisputed as related were ... I indicated.) is mine unless otherwise See Mid my think brethren would be correct ...” State, 512-513; supra, dleton v. State, v. Garello Id., Implicitly at 514-515. the Court tested the 56, 179, 31 Tex.Cr.R. 20 S.W. at 182 Smith, the rule of Parker under (1892); State, (Tex.Cr. v. S.W. Hallowel 28 468 Patton. 265, State, App.1894); v. Carson 43 Tex.Cr.R. 64 (1902); State, S.W. 1046 Chambless v. S.W. 2 77 cited 3. most cases include: (Tex.Cr.App.1903)(jury arbitrarily find not State, 400, (Tex.Cr. Garcia 406 v. 454 S.W.2d verdict, regardless undisputed a defense); of self- facts State, App.1970); Escamilla v. 464 S.W.2d State, (Tex. Clarkston v. 79 S.W. 304 840, State, (Tex.Cr.App.1971); 841 v. Whitfield 538, State, Cr.App.1904); v. 72 Green Tex.Cr.R. 502, (Tex.Cr.App.1973); 492 S.W.2d 504 Pow 1151, (1914); State, 162 S.W. 1152 Pittman v. State, 594, (Tex.Cr.App. ers v. 497 S.W.2d 596 264, (1940) (ver 140 Tex.Cr.R. 144 S.W.2d 569 State, 806, 1973); Appleman v. 531 S.W.2d 808 jury always upheld dict of when there evi (Tex.Cr.App.1975). it, support against dence but if verdict is recognition appeals, For of the rule courts testimony duty uncontroverted of self-defense see, e.g.: aside). of the court is to set it State, 852, (Tex.App.— v. 629 S.W.2d 860 Cruz refused; Judge 1982), Krueger, writing Corpus PDR as commissioner Christi Huffman Patton, 726, State, (Tex.App the Court in both Parker and stated v. 691 S.W.2d 728 . —Aus substantially State, language, 1985), history; rule in same no v. tin PDR Sebree 303, Conducting a (Tex.App. rote. review under that rule the [1st] — Houston agreed 1985), State, the evidence as to was history; self-defense v. no PDR Williams 1986), not uncontroverted and find thus could not (Tex.App. PDR S.W.2d 828 fused; re — Dallas Parker, State, 705, self-defense as a matter of law. at 230 v. 751 S.W.2d Torres Patton, (motion rehearing); 1988), and at 231 (Tex.App. Corpus Christi PDR re — fused; (Tex.Cr. State, v. 785 S.W.2d Torres Moreover, App.1890); Presiding Collins v. 754 S.W.2d Judge in 1944 Hawkins 1988), Middleton, (Tex.App. rehearing PDR re opinion [1st] wrote — Houston fused; supra, finding v. self-defense of law as matter Hernandez conviction, 1989), (Tex.App. reversing judgment rely- PDR re 321-322 — Dallas on, Smith, Green, e.g., supra Carson and all fused. man, penal codes has correctly sharp “there the law under our former found self-defense,” changed, answer is also immedi- conflict in the evidence as to been Parkman v. found, ironically, in agree ately that the so the Court was “unable to State, supra. totally evidence was uncontradicted.” 740 S.W.2d, lan- at 438. To “disavow this provided: Article P.C.1925 Parkman, and Patton Parker guage” proved “When the facts have been reject justification rational without offense, it devolves which constitute the demonstrated need. upon the facts or the accused establish Therefore, respect the court of which he relies to ex- circumstances on appeals merely recognized a rule—which justify prohibited act or omis- cuse acknowledges here the “rather sion.” v. The State Smith colorful old case [of ground Parkman appellate asserted established],” supported by Brief at 6— instructed “that should have been years than of consistent more one hundred proof upon the burden of the State to part I precedent, and dissent prove act in did not opinion Opinion, rejecting it. when he shot the deceased.” 912 n. 3 and related text. Court, Judge Writing for the Davidson

summarily disposed of that claim: II. it is “... premise appeal arises The core contention when self-defense case, testimony is: in a homicide State must under “[T]he proof is upon a reasonable the burden of the State to which establishes act in self-de not did that defense in order to secure doubt the law. Do fense.” Saxton v. a conviction. Such 1989) (em ver (Tex.App. 102 Tex.Cr.R. 277 S.W. [14th] — Houston [1925]; Briley original 138 Tex. phasis opinion). 249, [1940]; Art. Cr.R. ground The sole for review amended 46, P.C.” Brief is: “The of Id., to at 747.5 Pursuant former article 46 holding erred in evidence was in- raised the issue of whenever the evidence support sufficient to the conviction because self-defense, proper manner of submit- did not ting to on the law and then testimony regarding self-defense.” Brief facts, correctly allocating apply it to the immediately at 1. Thus at the threshold persuasion. and of burdens of evidence pivotal question: we a whether the have See, e.g., charge for to “a most favorable State has a burden evidence Johnson v. appellant” approved a proving beyond reasonable doubt that 235, self-defense, 534, at 237 did not act to 156 Tex.Cr.R. (2d Ed.1956) (1951), in 4 Branch’s copied secure a conviction for murder.4 Unless ambiguous ‘proof proof’ employed dealing ly of and the word 4. with matters “burden of realize, compensate entirely one must understand and discarded.” (And "disprove,” that "difficulties are to be the fact sure this writer adds lieu of Ibid. ambiguous phraseolo- "show.”) encountered ... from gy terminology employed." Ray, Law of coincidentally, § Practice 48. Professor Briley opinion, Evidence Texas 5. was written Ray notes: Judge Krueger, of the author Parker and Patton, Answering discussed ante 911-912. commonplace It now the term "... is to that the state failed show defen- contention proof “burden of is used in a double sense. It self-defense, Judge did deceased in dant not kill persuading either the of mean burden said, Krueger required nega- "The state introducing of the trier of fact or the burden every possible defense. The evidence tive evidence. Much confusion would be elimi- certainly come to if to allow the nated these or similar terms were constant- sufficient 2087.6 "... the defendant has § producing the burden penal change code The “new” did not defense, prosecution raise but has respect of self-defense with to burdens law burden dis- final proof persuasion. and of Section 2.03 prove it. Ramos problems determining of courts resolved (Tex.Cr.App.1972).” applies which offenses a defense Commentary to Practice 2.03. For one § by designating nature the burden application paragraph, form of an see specifying penal them in the code. As the Blackwell, McCormick & Texas Criminal recognizes, justification through Manual, Forms and Trial 8 Texas Practice prosecution. a defense to 86.07.7 also 1 Texas Annotated § Opinion, at n. 5. (Branch’s Ed.1974) Penal Code 3d Therefore, 2.03(c) under if evidence is § 9.32. § supporting admitted the existence of self- statutes, precedential governing Thus the court should submit prevailing practice caselaw demon- according 2.03(d) jury; to the of appeals strate that did indeed the issue is submitted to the “the pro- opining err in that “the State must that a reasonable doubt court shall duce beyond which establishes requires on the issue that the reasonable doubt that did not act acquitted.” Saxton, The latter formulation allo- supra, self-defense.” at 686. respective parties, cates the burdens agree To I the majority that extent with viz: opinion Having at 913.8 found erroneous killing support conclusion of a excuse proposition,” opin- without or such a Guilder Id., justification.” ion, 135 S.W.2d at 127. However, in context of a if criminal action evidence, you beyond 6. “If believe from the applied prosecution to the belief is such incor- doubt, reasonable that the defendant [shot rect, for whatever confusion over exists "burden deceased], you killed believe further proof’ there is no doubt whatsoever that the prescribed the evidence [he met factual prosecution always persua- has the “burden requisites], you acquit then should the defen- sion,” is, persuading the "burden of dant, OR, should have if convincing 52, guilt].” Ray, the trier [of doubt whether or not the defendant was act- 43, 48, Moreover, generally 42. ac- ..., you give in self-defense should cepted view is once fixed acquit defendant the benefit the doubt and Id., 57-58, persuasion never shifts. him.” say “disprove” Thus must defense means no more than “rebut” "show” "Now, therefore, you ... believe from the countering by argument in the sense of or rea- a reasonable doubt that the or, advisable, option soning at its if deemed intentionally then and there or 48-49, Ray, evidence. at 48. knowingly caused death of [deceased 2.03(d) Commentary The Practice to identi- prescribed means], alleged manner respective concisely, fies burdens more viz: indictment; you the evidence, further find from producing defendant has ”[T]he thereof, OR a of have reasonable doubt to raise a but the reasonably [pre- the defendant believed has the final burden requisites], you of acquit scribed factual will it." say by your defendant and verdict 'not ” Having just quoted Commentary the Practice guilty.’ charge actually given and summarized the however, majority, 8. Unlike I would not accepted practice. Judge terms consonant with to § attribute error for reasons “Clearly, Tom Davis continued: when the given, already opinions nor to the of this Court whole, placed is viewed as it bur- Guilder, in Luck and Van for reasons about to den the State SHOW on be stated. acting doubt that in self de- view, S.W.2d, my say, As indicated ante in n. at fense." 588 is not to That effect, however, conducing wrong thinking one term about terms problem disprove." placed evidence,” this is "to Because com- "burden to false,” usage prove proceeding going mon "to means the "burden of may disprove” believe that "to ais shorthand forward with the evidence” or the "burden of introducing evidence," proof’ Ray, rendition of of "burden sense of etc. See producing Ray, of "burden evidence." Indeed, Guilder, merely under the restates the same impression understanding. that socalled “dicta in both Luck and MOTION OPINION ON premise on which the reason core appeals is of the court of decision PER CURIAM. based, judg- simply we should vacate the requests extend Petitioner this Court to ment the court remand the cause to of filing mo- time limitations for the of of for reconsideration. judgment arrest of tions new trial and judgment of conviction. The

under complete the state- reporter is unable to pre- within the time limit ment facts filing new of a motion for scribed for alleged judgment, and is trial arrest necessary that such statement of facts lawyer in re- cogently examine the trial gards point of error ineffective TORRES, Appellant, Armando of counsel. assistance 2(b) Tex.R.App.P. advocates Petitioner Texas, Appellee. The STATE of authority to effectuate grants this Court procedure. provides This rule that this this No. 08-90-00052-CR. suspend expedite deci- Court rules to Texas, Appeals However, good sion or for other cause. El Paso. authority to this rule denies this Court Code suspend requirements of the of Crimi- 15, 1990. Feb. 2(a) Further, prohibits Rule nal Procedure. this rule to be construed extend Appeals. jurisdiction of the Court of Juris- matter still lies with the trial diction court. Petitioner’s motion denied. Upon appeal judgment under point error ineffective assistance counsel, Court would consider a motion until proceedings to abate the the trial lawyer/witness trial testi- court has taken mony pertaining point. to such TORRES, Appellant, Armando Texas, Appellee. The STATE 08-90-00052-CR. No. Texas, Appeals El Paso. 6, 1990. June Gibson, Paso, appel- El R. Michael Rehearing Opinion on Denial

lant. June Simmons, El Atty. W. Dist. Paso Steve Paso, County, appellee. El

Case Details

Case Name: Saxton v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 27, 1991

Citation: 804 S.W.2d 910

Docket Number: 1404-89

Court Abbreviation: Tex. Crim. App.