Dorsey v. State
Decision Date | 03 December 1969 |
Docket Number | No. 42379,42379 |
Citation | 450 S.W.2d 332 |
Parties | Dwain Douglas DORSEY, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Charles W. Tessmer, Frank S. Wright, Dallas, for appellant.
Henry Wade, Dist. Atty., John Tolle, Charles Caperton, Tom Reese, Malcolm Dade and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is murder; the punishment, 99 years.
The indictment alleged that appellant did, on or about the 19th day of December 1966, voluntarily and with malice aforethought kill Charles Adran Barnard by shooting him with a gun.
The state elected not to seek the death penalty. Appellant entered a plea of not guilty and filed application for probation.
The trial began on April 18, 1967, Retired District Judge W. C. Dowdy having been assigned by the Presiding Judge of the First Administrative Judicial District under authority of Art. 200a Vernon's Ann.T.S. to Criminal District Court of Dallas County for a period beginning April 18, 1967, 'for the trial and disposition of any and all matters pending on the docket of such court and which may come before him while filling this assignment.'
Verdict of guilty was returned and appellant elected to have the jury assess the punishment. On April 20, 1967, the jury returned a verdict assessing the punishment at 99 years and judgment was rendered.
Formal motion for new trial, filed April 21, 1967, was overruled and on May 8, 1967, sentence was pronounced by Hon. J. Frank Wilson, now deceased, Judge of Criminal District Court. Notice of appeal was given and noted in the sentence.
The record on appeal was approved on August 24, 1967, by Judge Wilson who extended the time for filing appellant's brief to December 15, 1967, and the time for filing the state's brief to March 15, 1968.
The final order refusing to grant appellant a new trial and for the prompt transmission of the entire record and briefs to this court was made by Judge Wilson's successor now Judge of Criminal District Court of Dallas County, Hon. Jerome Chamberlain, on July 17, 1969. Such record and briefs were filed in this court on July 23, 1969, and the appeal was submitted on briefs and argument on November 12, 1969.
We first direct attention to certain matters included in the record on appeal forwarded to this court which occurred after the record on appeal had been approved, namely a motion requesting a hearing in reference to a motion to vacate the judgment of conviction which was denied by Hon. J. Frank Wilson on December 14, 1967, and the motion upon which hearing was denied.
The motion to vacate the judgment challenges the qualification of assigned Judge W. C. Dowdy to serve in the capacity of or to execute the official duties of the office of District Judge on the ground that he failed to receive a majority of the votes cast at the general election held on November 3, 1964, as a candidate for reelection as Judge of the 59th Judicial District, Hon. David H. Brown having defeated him.
If before us, we find no merit in appellant's contention that Judge Wilson erred in denying the motion for hearing, nor do we find merit in the contention that Judge Dowdy's loss of the general election in November 1964 'deprived him of of the de jure office of district judge' or his right to retire at or before the expiration of his term of office.
Judge Dowdy's term of office did not expire until January 1, 1965. His defeat in no way interfered with his rights as a retired judge under Art. V, Sec. 1-a, Constitution of Texas (added Nov. 2, 1948, amended Nov. 2, 1965), Art. 6228a, Sec. 2, and Art. 200a V.A.T.S.
The motion contains no allegation of fact which if true would support the contention that Judge Dowdy was not qualified to preside at appellant's trial.
The sufficiency of the evidence to sustain the conviction is not challenged. That appellant shot the unarmed deceased with a .38 caliber revolver is undisputed.
The state's evidence was that appellant came out the door with the pistol cocked and after an exchange of words shot deceased as he turned to walk away.
Death resulted from a bullet wound of the chest, the path of the bullet being through the right arm and in a straight line across the body where it lodged in the spinal column.
Three grounds of error are set forth in appellant's brief filed in the trial court, each of which complains of the failure to grant a mistrial.
Ground one relates to the closing argument at the hearing on the issue of punishment wherein the following comment and objection were made:
We do not agree that the remarks constituted a comment 'about the length of term that will be served.'
In Fernandez v. State, Tex.Cr.App., 366 S.W.2d 575, cited by appellant, the comment was 'when he has been rehabilitated that they will turn him loose.' The comment here was that if he was not given life or 99 years they would not be able to hold him until he was rehabilitated. In other words, only a period of confinement such as life or 99 years would suffice for his rehabilitation.
Ground of error No. 2 complains of the following, on cross-examination of Francis Ruebling, a character witness for the defense:
(We find no ruling on the motion for mistrial.)
The ground of error further complains of the following, which occurred during the cross-examination of the witness Brenda Kay Harris:
To continue reading
Request your trial-
Woodward v. State
...S.W.2d 697 (Tex.Cr.App.1977), (a police officer); Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974), (a legislator); Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1969), (a district court judge); Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974), (a clerk of a court of My......
-
Landers v. State
...offenses keeps the State from bringing many, many other checks, if there are any. Said ground of error is multifarious, Dorsey v. State, Tex.Cr.App., 450 S.W.2d 332, but we do not feel same would present reversible error even if such were not the case. The only ground stated for the objecti......
-
Hodge v. State
...Kincaid v. State, 534 S.W.2d 340 (Tex.Cr.App.1976); Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975); Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1969); Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1963). However, we do not find that the prosecutor's remarks constituted reversible Her......
-
Cooper v. State, 46659
...error under the opinion of this court in Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1963). See and compare Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1970); Bryant v. State, 455 S.W.2d 235 (Tex.Cr.App.1970); Lopez v. State, 464 S.W.2d 882 Even so, the error, if any, in the prosecutor's......