William James UTSMAN, Appellant, v. The STATE of Texas, Appellee.
No. 45540.
Court of Criminal Appeals of Texas.
Oct. 11, 1972.
485 S.W.2d 573
It is true that the use of a prior void conviction for impeachment purposes may deprive a defendant of due process if its use might have influenced the outcome of the case. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374. If the conviction hеre was void we cannot conclude that its use influenced the outcome of the case. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Hoover v. Beto, 467 F.2d 516, 5th Cir. (8-9-72).
Finally, apрellant contends that his confession which was introduced into evidence was involuntary.
Appellant has not briefed this ground of error nor has he cited any authorities in support of his contention. His brief states only that “although he was warned in accordance with the law, he was beaten and coerced and would not have confessed to this crime but for the same, and the trial court committed reversible error in admitting said confession.” Such does not сomply with
The record reveals that three separate Miranda warnings were givеn to the appellant after his arrest. He was given an opportunity to call his lawyer and declined to do so. At the trial, the court held a Jackson v. Denno2 hearing outside thе presence of the jury and entered written findings of fact and conclusions that the confession had been voluntarily given. At such hearing the police officers denied using any force, threats or violence against the appellant and testified that the confession was voluntarily made. The court submitted the issue of voluntariness to the jury who resolved such issue against the appellant. We conclude that the confession was voluntarily given and no revеrsible error has been shown.
The judgment is affirmed.
Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State‘s Atty., Robert A. Huttash, Asst. State‘s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the offense of possession of barbiturates. The jury assessed the punishment at confinement in jail for two years and a fine of $3,000.
The appеllant complains that the trial court erred in denying his motion for change of venue and abused its discretion in refusing to grant an extension of time to file a statement of facts.
The appellant filed his motion for change of venue with affidavits of three compurgators. This was in compliance with
Did the appellant waive any claimed error when he entered a plea of guilty? In Fierro v. State, Tex.Cr.App., 437 S.W.2d 833, this Court held:
“A plea of guilty, if voluntarily and understandingly made, is conclusive as to defendant‘s guilt and waives all non jurisdictional defects including claimed deprivation of federal constitutional due process. Hoskins v. State, Tex.Cr.App. 425 S.W.2d 825; Law v. Beto, 5 Cir., 370 F.2d 369, cert. denied, 389 U.S. 863, 88 S.Ct. 123, 19 L.Ed.2d 132; Litton v. Beto, 5 Cir., 386 F.2d 820; Bee v. Beto, 5 Cir., 384 F.2d 925.1”
The Court also held in Andrade v. State, Tex.Cr.App., 470 S.W.2d 194, that a defendant‘s plea of guilty waives any constitutional question as to search and seizure. See Durham v. State, Tex.Cr.App., 466 S.W.2d 758, and Soto v. State, Tex.Cr.App., 456 S.W.2d 389.
In Gonzales v. State, Tex.Cr.App., 458 S.W.2d 926, a motion to suppress a confession was overruled. Thеre was no showing that the plea was not voluntary. The Court held that the plea was an effective waiver of any pretrial irregularities.
The Supremе Court of the United States held that constitutional rights were waived when a defendant voluntarily enters a plea of guilty. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Parker v. North Carolina, 397 U.S. 790, 90S.Ct. 1458, 25 L.Ed.2d 785; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747.
A trial court in Texas may not accept a plea of guilty or nolo contendere by a defendant with the understanding that he may preserve his right to аppeal an adverse ruling. Killebrew v. State, Tex.Cr.App., 464 S.W.2d 838, and Chavarria v. State, Tex.Cr.App., 425 S.W.2d 822. To enter a plea of guilty one must waive such rights.
The Arkansas Supreme Court in Hudspeth v. State (1934), 188 Ark. 323, 67 S.W.2d 191 cert. denied, 296 U.S. 642, 56 S.Ct. 178, 80 L.Ed. 456, held that even though the trial court erroneously denied a motion for change of venue, this error was waived when the defendant entered a plea of guilty. Cf. Johnston v. Florida, 112 Fla. 189, 150 So. 278 (1933).
We hold that when the appellant entered his plea of guilty, he waived his right to cоmplain of the failure to change venue.
The contention that the denial of an extension of time for the filing of a transcription of the court rеporter‘s notes or statement of facts was an abuse of discretion is not supported by the record. The motion for the extension of time was filed November 24, 1971. The trial court in the order denying the motion recited that the appellant gave notice of appeal August 24, 1971, making November 24, 1971, the lаst day to file the statement of facts under
No affidavit of indigency appears in the record. No request for the statement of facts prior to thе request for extension of time is shown.
No error has been shown.
The judgment is affirmed.
ONION, Presiding Judge (concurring).
The appeal results from a conviction for possession of a dangerous drug: “to wit: Barbiturate.” The punishment was аssessed by the jury at confinement in the county jail for two years and a fine of $3,000.00.
Initially, appellant contends the trial court erred in denying appellant‘s motion for change of venue claiming that his motion was not controverted by the State. He relies, among other authorities, upon Wall v. State, 417 S.W.2d 59, 63 (Tex.Cr.App. 1967), and Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72, 73 (1921).
The complaint and information alleged the offense charged occurred “on or about July 16, 1970.” Such instruments were filed on July 20, 1970. After the case had been passed three times at appellant‘s request, he filed the motion for change of venue in question on January 11, 1971. The cause had been set for trial on the following dаy. On that date, January 12, 1971, the appellant filed his first motion for continuance based on the fact that in addition to his two retained counsel, he was now rеpresented by an out-of-county lawyer-legislator and that he was entitled to a continuance pursuant to
Further, after the motion for change of venue was overruled, the appellant then entered a plea of guilty to the instant misdemeanor charge before a jury and filed his motion for probation.
Under the circumstances, we need not dеcide whether the appellant waived any error as to the failure to change venue when he subsequently entered a plea of guilty. And I would not so decide in this case.
For the reasons stated, I concur.
MORRISON, J., joins in this concurrence.