Couch v. State, 26178
| Citation | 255 S.W.2d 223,158 Tex.Crim. 292 |
| Decision Date | 25 February 1953 |
| Docket Number | No. 26178,26178 |
| Parties | COUCH v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Grady Hazlewood, Amarillo, for appellant.
H. C. Pipkin, Jr., Dist. Atty., Amarillo, George P. Blackburn, State's Atty., of Austin, for the State.
The offense is murder; the punishment, life.
The appellant does not question the sufficiency of the evidence to support the conviction, but because it is the policy of this Court to always pass upon the same where properly before us, we make the following explanation of our inability to do so in the case at bar.
The statement of facts found in the record does not bear the approval of the trial judge, nor is it agreed to by appellant or his counsel, or by the attorney representing the State, the only manner authorized by Article 759a, Vernon's Ann.C.C.P., for authenticating this document.
Appellant would have us consider the statement of facts upon his showing that the trial judge and the district attorney now agree that they would approve the same if it were presented to them.
We are not at liberty to ignore the statute which requires the approved statement of facts to be filed in the trial court within ninety days after notice of appeal.
We have considered statements of facts not so approved and filed, and have ordered reversals upon the grounds that an appellant has been deprived of a statement of facts, but only upon a satisfactory showing that the accused and his counsel have exercised diligence in the matter and that the failure to secure the approval and file the statement of facts in time has been due to no fault or negligence on their part.
There is no showing that appellant or his counsel has been deprived of a statement of facts which can be considered by this Court or that diligence has been used in an effort to secure the court's approval of the statement of facts.
Under similar facts, we recently held, in Nelson v. State, Tex.Cr.R., 257 S.W.2d 306, that the statement of facts could not be considered.
The only questions urged by appellant relate to the prosecutor's argument and his cross-examination of appellant.
Bill of exception No. 1 purports to complain of the opening argument of the district attorney. We find nothing improper in the argument as such.
The bill further complains that the district attorney referred to the prison record of appellant during the course of such argument. As to the objection interposed to such argument, the bill recites, in part, as follows:
'* * * one of the attorneys for the defendant, at the very beginning of the argument by the district attorney, above quoted, went to the court's bench and privately objected to said argument by the district attorney on the grounds * * *.'
This Court has not approved this manner of objecting to argument. Wood v. State, 142 Tex.Cr.R. 282, 152 S.W.2d 335. However, we will discuss the question raised.
We note, in the beginning, that the Court qualified the bill, in part, as follows:
'It appeared to me that the district attorney never did turn the face of said instrument toward the jury, and that no part of it was ever in such position as that the jury or any member thereof could read any part of it.'
As additional qualification, the trial court attached the interrogation of the district attorney on the motion for new trial relating to his reference to the prison record during the course of his argument. From this, we learn that the prosecutor had in his possession during the course of the trial, along with other papers, a transcript of the former convictions of the appellant prepared by the Department of Public Safety; that he questioned app...
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Nichols v. State
...488 S.W.2d 86 (Tex.Cr.App.1972); Bustillos v. State, supra; King v. State, 425 S.W.2d 356 (Tex.Cr.App.1968) and Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223 (1953). Since the appellant had not reformed, the prior felony conviction was also admissible. Williams v. State, 449 S.W.2d 264 ......
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Timmons v. State, 56538
...well settled that the burden is on an appellant to establish that he had been deprived of his statement of facts. Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223, 224 (1953). To be entitled to a reversal of judgment of conviction where the statement of facts is not filed, an appellant mus......
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Adams v. State Bd. of Insurance
...from the penitentiary. Dillard v. State, Tex.Cr.App., 218 S.W.2d 476; Toms v. State, 150 Tex.Cr.R. 264, 200 S.W.2d 174; Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223. In the case of Carr v. De Witt, Tex.Civ.App., 171 S.W.2d 388, 390, the court 'Some authorities hold that ten or more yea......
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...and involve an actual party or defendant, rather than a witness. For example, in his reply brief the appellant cites Couch v. State, 158 Tex.Cr.R. 292, 255 S.W.2d 223 (1953), wherein the Court of Criminal Appeals says: 'It is now well settled that the time of release from confinement rather......