Garcia v. State, 41257.
| Decision Date | 17 July 1968 |
| Docket Number | No. 41257.,41257. |
| Citation | 429 S.W.2d 468 |
| Parties | Nicholas GARCIA, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Hernandez, Cazorla & Ramirez (on appeal only), by Florentino Ramirez, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., John Stauffer, Douglas Mulder, Malcolm Dade and Wilson Johnston, Asst. Attys. Gen., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for felony theft of an automobile with a prior conviction of a non-capital felony alleged for enhancement; the punishment, ten years.
Error is urged on the ground that Criminal District Court No. 5 of Dallas County did not have jurisdiction to try the present Cause No. C-67-1739-IL.
The statute creating Criminal District Court No. 5 of Dallas County conferred upon it concurrent jurisdiction with all the existing Criminal District Courts of Dallas County, one of which was Criminal District Court No. 2. Art. 1926-15, Vernon's Ann. Civ. St.
To support his position, the appellant contends that no indictment having been returned into Criminal District Court No. 5 of Dallas County in Cause No. C-67-1739-IL, and no other court having transferred this cause to Criminal District Court No. 5, his conviction in said court under this styled and numbered cause is void for want of jurisdiction.
The transcript reflects that on April 24, 1967, an indictment was presented by the grand jury into Criminal District Court No. 2 of Dallas County charging Nicholas Garcia, Jr., with felony theft in Cause No. C-67-1739-I. On the same date, the same court transferred Cause No. C-67-1739-I to Criminal District Court No. 5 of Dallas County. On the same date, an order receiving Cause No. C-67-1739-IL, styled The State of Texas vs. Nicholas Garcia, Jr., by Criminal District Court No. 5 of Dallas County from Criminal District Court No. 2 of Dallas County, charging the offense of felony theft, was entered in the minutes.
The jurisdiction of Criminal District Court No. 2 of Dallas County of Cause No. C-67-1739-I, charging Nicholas Garcia, Jr., with felony theft is not questioned. No attack is made on the sufficiency of the order transferring No. C-67-1739-I in Criminal District Court No. 2 to Criminal District Court No. 5 in Dallas County.
The receiving order of Court No. 5 of the cause transferred from Court No. 2 recites all the facts identifying it, and then adds the letter "L" as shown in the order, to-wit, No. C-67-1739-IL.
The transfer order from Court No. 2 to Court No. 5 was valid, and when the cause was entered on the docket of Court No. 5 it had like jurisdiction therein as in cases originally filed in said court. Art. 1926-15, supra. The adding of the letter "L" in Court No. 5 as it now appears on the indictment did not deprive it of its jurisdiction. This ground of error is overruled.
The failure of the court to submit his requested charge that "One of the elements of theft of a motor vehicle is an intent to permanently deprive the owner of such vehicle without the owner's consent." is urged as a ground of error.
In the charge to the jury, the court defined fraudulent taking and then required the jury to find beyond a reasonable doubt that appellant fraudulently took the automobile from the owner, without his consent, and with the intent to deprive him of it and to appropriate it to his own use and benefit before they could find him guilty, or, if they had a reasonable doubt thereof to find him not guilty. The charge as given sufficiently included the element of theft as requested. The ground of error is overruled.
The appellant contends that he was denied a fair and impartial trial and representation by adequate counsel in the trial court which constituted a denial of due process of law as a ground of error.
To support his contention, the appellant submits that he was dressed in a white jail uniform during a brief trial, and that without objection, leading questions were asked by the prosecution; that while he was testifying his counsel brought out that he was then on parole; that his counsel made a vain attempt to make out a defense of insanity, and no showing was made by defense counsel to obtain such testimony; that his counsel attempted to prove that he did not remember taking the automobile, and that he had no intent to permanently deprive the owner of it.
The testimony of the state reveals that about 2:15 a. m., two police officers saw an automobile without license plates being driven along a public street in Dallas; that the appellant was driving the car and was accompanied by a female passenger, and he was intoxicated to a minor degree, but his speech was not slurred; and that the automobile had been stolen that night from a sales lot in Dallas.
While testifying, the appellant stated that he did not remember taking the car, did not know how he came in possession of it, and that he never intended to take the car "as a permanent thing."
The only testimony referring to appellant's attire was:
The appellant testified on direct examination pertaining to his previous criminal record as follows:
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