Arguijo v. State

• Decision Date: 11 June 1941
• Docket Number: No. 21649.,21649.
• Citation: 154 S.W.2d 656
• Parties: ARGUIJO v. STATE.
• Court: Texas Court of Criminal Appeals

154 S.W.2d 656

ARGUIJO v. STATE.

No. 21649.

Court of Criminal Appeals of Texas.

June 11, 1941.

Rehearing Denied October 22, 1941.

Commissioners' Decision.

Appeal from District Court, Hidalgo County; Bryce Ferguson, Judge.

Rosendo Arguijo was convicted of robbery with firearms, and he appeals.

Affirmed.

Fred Hofstetter, of Edinburg, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

The offense is robbery with firearms; the punishment, 99 years in the state penitentiary.

Appellant being without counsel, the trial court appointed an attorney to represent him. He made known to the trial court that he desired to plead guilty. Before accepting the plea, the nature and consequences of such a plea were fully explained to him. All statutory requirements necessary to a plea of guilty were complied with. Art. 501, C.C.P. At the expiration of such admonition and explanation by the trial court, appellant persisted in his plea, asserting that he was guilty.

The facts show appellant guilty as an active participant in a robbery, consummated as a result of a prior conspiracy and during which the injured party was seriously wounded by a pistol shot fired by one of the coconspirators.

The only question presented relates to the failure and refusal of the trial court to permit appellant to file a motion for new trial several days after the expiration of the statutory two days' time. The right to file a motion for new trial after the expiration of the time allowed by statute is, ordinarily, in the discretion of the trial court, and his ruling will be reviewed only to determine whether that discretion has been abused. Adaire v. State, 130 Tex.Cr.R. 1, 91 S.W.2d 367.

In the motion so desired to be filed and considered, no statutory grounds upon which a new trial should be accorded are asserted. To the contrary, the motion is based largely upon equitable grounds only, and is to the effect that the attorney, who lived in another county, and who had been employed by appellant's parents to represent him, was unable to be in attendance upon the trial. It is significant to note that neither the appellant nor the trial court knew of such employment, prior to the trial. It is not alleged or asserted in the motion that appellant had any defense to the accusation, nor that the counsel appointed by the trial court to represent appellant, and who did represent him, did not do so properly.

The motion, however, does assert that the indictment is defective, and that the charge of the trial court failed to charge the law applicable to the case.

The indictment is in keeping with that often approved by this court and is, therefore, sufficient. Branch's P.C., § 2379. We deem it unnecessary to discuss this matter further.

The charge which was given is as follows: "The defendant stands charged by indictment with the offense of Robbery by firearms alleged to have been committed in the County of Hidalgo andState of Texas on or about the 26th day of January, A. D.1941. To this charge the defendant has pleaded "guilty," and he has persisted in entering such plea, notwithstanding the Court, as required by law, has admonished him of the consequences of the same; and it plainly appearing to the Court that the defendant is sane, and that he is not influenced to make this plea by any consideration of fear, nor by any persuasive or delusive hope of pardon promtping him to confess his guilt, said plea is by the Court received, and you are instructed to find the defendant guilty as charged in the indictment and assess his punishment at death or at confinement in the penitentiary for a term of not less than five years."

Note is to be taken of the fact that such charge did not require the jury to find that the elements necessary to constitute the offense of robbery by firearms had been established by the evidence. Under such charge, the only issue for the jury to determine was that of punishment.

The question presented, then, is whether such charge was sufficient. Art. 658, C.C. P., Vernon's Ann.C.C.P. art. 658, requires that, in all felony cases, the jury must be given in charge the law governing the case. Where the trial is before a jury, the introduction of testimony upon a plea of guilty is only for the purpose of enabling the jury to fix the punishment; and, in such cases, the sufficiency of the evidence to support the conviction will be inquired into only when such evidence shows the innocence of the accused. Anderson v. State, 118 Tex.Cr.R. 194, 42 S.W.2d 1012; Vance v. State, 122 Tex.Cr.R. 157, 54 S. W.2d 118; Art. 502, C.C.P. The facts here presented raise no such inference. Hence, the guilt of the appellant became settled as a matter of law. It follows that, when the trial court so instructed the jury, he was correctly "setting forth the law applicable to the case."

From what has been said, it follows that the trial court did not abuse his discretion in failing to permit the motion for new trial to be filed, and that the judgment of conviction should be affirmed....