Eggleston v. State, 40766
| Decision Date | 22 November 1967 |
| Docket Number | No. 40766,40766 |
| Citation | 422 S.W.2d 460 |
| Parties | Thomas EGGLESTON, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Mayo J. Galindo, Eugene B. Labay, San Antonio, for appellant.
James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
The conviction is for murder; and the punishment was assessed at ninety-nine years.
The jurisdiction of the 175th District Court of Bexar County to render the judgment of conviction in this case is challenged.
In appellant's brief the challenge is based on the following ground:
In urging this ground as error the appellant alleged in his amended motion for new trial:
'The error of the Court in exercising its jurisdiction in this cause, Cause No. 65,766, and the indictment thereof having previously been returned by the grand jury into the 144th District Court of Bexar County, Texas, and said cause having been subsequently transferred to the 175th Judicial District Court of Bexar County, Texas, in a manner not authorized by law.'
It is undisputed that the 144th District Court acquired jurisdiction of this cause by the return of the indictment by the grand jury into said Court, and then by written order it transferred said cause to the 175th District Court with the consent of that Court, and said order was entered upon the minutes of the Court.
The statute (Art. 199(37) R.C.S.) expressly provides that its intent is that the 144th District Court and the 175th District Court of Bexar County shall give preference to criminal cases, while the other seven District Courts shall give preference to civil cases although, each Court has concurrent jurisdiction in both civil and criminal cases. To expedite and equalize the dockets of said Courts, the statute further provides that the Presiding Judge shall transfer, or cause to be transferred, upon approval of the Judges of said Courts, causes from one Court to another Court. The purpose and intent of the statute in providing for the transfer of cases, upon the approval of the Judges of said Courts, could not be reasonably construed as requiring the approval of all nine Judges, but instead, that it only requires the approval of the Judge of the Court in which said cause is pending and the Judge of the Court to which the cause is transferred. It is evident that the statutory provisions for the transfer of cases, upon approval of the Judges, resulted in the Judges of the 144th and 175th District Courts, on November 23, 1964, entering a joint order for the transfer of cases between them upon the minutes of said Courts; and in pursuance thereto, on February 23, 1966, a joint order was entered transferring this cause.
From a consideration of the statute as a whole, the conclusion is reached that the transfer of this case, upon the order showing the approval of the Judges of the 144th and 175th District Courts, was authorized by virtue of the power and authority conferred by the statute. It appears that all of the procedural requirements pertaining to the making of the transfer order have been sufficiently complied with, and that the jurisdiction of the 175th District Court was legally invoked in this case.
It is contended that the trial court erred in admitting evidence showing the search of the appellant's room in the house where he lived with his mother, and in admitting in evidence the fruits of the search.
The testimony of the state reveals that the officers went to the appellant's mother's house about 6 p.m., December 28, 1965, and when she came to the door they identified themselves and she said: 'Yes, I am expecting you.' and invited them in; that they advised her that they wanted to search the house, telling her that she did not have to give consent, and they explained and read a written consent form to her which they filled out, and she signed it. The written consent was introduced in evidence. Upon a search of the house they found a box of shoe polish and a pistol.
The mother of the appellant, called by the state, testified that the appellant telephoned her about 5 or 6 p.m., December 28, telling her that the officers were coming to search the house and to 'Let them search.' On cross-examination she testified that when the officers identified themselves at the door, she stood there awhile, and then the officer said: 'We don't have a search warrant, but it would make it better for you and for me if you let us search--easier.'; that she asked them into the house, and an officer filled out the paper which was read to her and she signed it.
The Court charged the jury on the issue of whether the appellant and his mother consented to the search, and instructed the jury that unless they found such consent was given beyond a reasonable doubt not to consider the items seized or any testimony relating to the search.
The grounds urging that the search of the house was illegal, are overruled.
The admission in evidence of the entire examining trial testimony of the state's witness, Jerry Eng, is presented as a ground of error. In support of his position, the appellant urges that an impeached witness cannot be supported by a showing that he made statements as to other matters, upon which he was not impeached, corresponding with his testimony on the trial.
Jerry Eng with his brother, Jesse, the deceased, pursued the appellant from the store where by the use of a pistol, he had robbed their mother, Mrs. Eng. After a short distance, the appellant began shooting the pistol toward Jesse and one shot hit him in the left eye and entered his head.
Jerry Eng testified on the examining trial. During cross-examination on this trial, Jerry testified that he did not remember stating that the 'man was shooting up in the air.' At this time the...
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