Born v. State

• Decision Date: 25 January 1967
• Docket Number: No. 40023,40023
• Citation: 411 S.W.2d 739
• Parties: Leon Reginold BORN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 739

411 S.W.2d 739

Leon Reginold BORN, Appellant, v. The STATE of Texas, Appellee.

No. 40023.

Court of Criminal Appeals of Texas.

Jan. 25, 1967.

Rehearing Denied March 8, 1967.

Ben Henderson, Dallas, for appellant.

Henry Wade, Dist. Atty., Robert Stinson, Scott Bradley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for assault with intent to murder. The punishment was assessed at fifteen years.

Sentence was pronounced and notice of appeal given on January 21, 1966.

The appellant's brief assigning error was filed in the trial court long prior to the approval of the record by the trial judge. From the oral argument at the time of submission and the record, it appears that said brief is still relied upon by the appellant. It will be considered.

The appellant contends that his written statement pertaining to the offense charged was illegally obtained from him on the ground he was arrested without a warrant, never taken before a magistrate, or advised of his right to counsel; and its admission in evidence was error.

The trial judge held a separate hearing in the absence of the jury on the issue of the voluntary nature of the written statement of the appellant, and prior to its admission in evidence before the jury he made an independent finding that it was voluntarily made.

The issue as to the voluntary nature of the written statement was properly submitted to the jury in the court's charge.

At the time said written statement was offered into evidence the appellant made no objection, and it was admitted in evidence and read to the jury without objection. In the absence of any objection to the admission of said statement at the time it was offered in evidence before the jury no error is shown. 5 Tex.Jur.2d 67, Sec. 40; O'Conner v. State, Tex.Cr.App., 373 S.W.2d 245; Clemons v. State, Tex.Cr.App., 398 S.W.2d 563; Watts v. State, Tex.Cr.App., 408 S.W.2d 106.

Error is urged on the ground that the appellant has been denied a part of the record in the cause, that is, a transcription of all the argument to the jury.

At the beginning of this trial the appellant filed the following motion:

'Now comes Leon R. Born hereinafter called defendant in the above styled and numbered cause by and thru his attorneys of record and requests the court to cause all of the argument of counsel to be transcribed by the official court reporter that is allowed by law, and in this connection defendant says that he is too poor to pay for same and further herein that he does not have property to pledge for said transcript of said remarks and summaries by the said attorney or attorneys in the summation to the jury in said cause.'

The above motion was granted by the court.

Art. 40.09, Sec. 1, Vernon's Ann.C.C.P., provides as follows:

'In all cases appealable by law to the Court of Criminal Appeals, the clerk of the court that entered the conviction sought to be appealed from shall, under his hand and seal of the court, Make and prepare an appellate record comprising a true copy of the matter designated by the parties, but shall always include, whether designated or not, copies of the material pleadings, material docket entries made by the court, the charge, verdict, judgment, sentence, notice of appeal, any appeal bond, all written motions and pleas and orders of the court, and bills of exception.'

Art. 40.09, Sec. 2, C.C.P., reads:

'Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the...