Carter v. State, 39828

• Decision Date: 02 November 1966
• Docket Number: No. 39828,39828
• Citation: 408 S.W.2d 507
• Parties: Eugene CARTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 507

408 S.W.2d 507

Eugene CARTER, Appellant, v. The STATE of Texas, Appellee.

No. 39828.

Court of Criminal Appeals of Texas.

Nov. 2, 1966.

Rehearing Denied Dec. 7, 1966.

J. Harlan Fleming, Fort Worth, for appellant.

Doug Crouch, Dist. Atty., Grady Hight, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Commissioner.

The offense is theft from the person; the punishment, enhanced under Art. 63, Vernon's Ann.P.C., by reason of two prior convictions for felonies less than capital alleged for enhancement, life imprisonment.

Trial was on November 18, 1965, and notice of appeal was given to this court on March 7, 1966.

Notice of appeal having been given after January 1, 1966, the preparation of the record on appeal is governed by the 1965 Code of Criminal Procedure. Ross v. State, Tex.Cr.App., 403 S.W.2d 138.

The record on apeal consists of a transcript of the proceeding in the cause certified to by the clerk, and a separate statement of facts of the evidence adduced upon the trial bearing the certificate of the official court reporter and approved by counsel for the state and the appellant and also approved by the trial court.

Such record is not in compliance with the requirements of Art. 40.09 of the 1965 Code that it be assembled under one cover and be approved by the trial court.

No brief is shown to have been filed by the appellant in the trial court pointing out the grounds of which he desired to complain on appeal, as required by Sec. 9 of Art. 40.09, supra.

While no grounds of error are presented by appellant for review, we shall consider as unassigned error--under Sec. 13 of Art. 40.09, supra--two contentions urged in his brief filed in this court which are of constitutional dimension.

The first contention is that the court erred in overruling appellant's motion to quash the indictment, on the ground that reading to the jury the allegations of the two prior convictions deprived him of due process of law as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.

A similar contention has been by this court rejected in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392, and the many cases there cited. See, also: Breen v. Beto, Fifth Circuit of Appeals, 341 F.2d 96; Stephens v. State, Tex.Cr.App., 377 S.W.2d 189 (cited in Crocker, supra), Ex parte Stephens, Tex.Cr.App., 388 S.W.2d 199, cert. denied, Stephens v. Texas, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274.

The other contention is that the introduction in evidence of appellant's written confession, over objection, constituted a denial of due process because he was not granted the right to have counsel present before making and signing the same. In support of his contention appellant relies upon a statement in his confession introduced in evidence by the state, which reads: 'I have been advised that I may call counsel if I wish and have chosen to do so,' and upon the testimony adduced at the trial to the effect that he did not have counsel present when he made the confession.

Appellant concedes that the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, has no application to his trial which began on November 18, 1965, but insists that the facts in the instant case go much further than those in Miranda and show that he was denied the right to consult with counsel prior to making the confession.

Appellant did not testify at the trial.

Officer J. B. Walls, to whom the confession was made, testified as follows:

'Q Was it you, or some other officer, that advised him to get a lawyer? A I believe it was J. D. Roberts and myself, both; and I believe that Jack Bennett had also so advised him earlier.

'MR. FLEMING: Your Honor, we object to what he believes.

'THE COURT: Well, we don't want any speculation, Officer. You either know it or your don't. A I know that I advised him that he could have a lawyer, and I know that Roberts did.

'Q (BY MR. GOODNIGHT) You know that Roberts did? A Yes sir.

'Q Did the Defendant, at the time you took his statement, tell you that he had talked to a lawyer? A He said that he had called one; yes.

'Q Did he ask that that lawyer be present during the taking of the statement? A No sir.

'Q Now, it says down here: (Reading) 'I have been advised that I may call counsel if I wish and have chosen to do so.' * * * Now, did you tell him that, that he could call counsel? A Yes sir. I told him that he had the right to call counsel, and the right to contact a lawyer.

'Q. And he states here, that he...