Harris v. State, 42717

Decision Date08 April 1970
Docket NumberNo. 42717,42717
PartiesRuben HARRIS, Jr., Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Hope, Henderson, Hohman & Georges, by James E. Hope, San Antonio, on appeal only, for appellant.

James E. Barlow, Dist. Atty., and Sparta Bitsis, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is robbery by assault; the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., life.

Initially, appellant complains of the trial court's refusal to consider his amended motion for new trial and to grant a hearing thereon. Appellant contends the court refused since the motion was not signed by him. The motion was based on allegedly newly discovered evidence. The motion was not sworn to by the appellant or his counsel and for this reason alone it is not sufficient to present for review the claimed error. Browning v. State, Tex.Cr.App., 432 S.W.2d 85 and authorities there cited. Such rule is well established and the attached affidavit of the allegedly newly discovered witness alone will not suffice. Browning v. State, supra; Martin v. State, 169 Tex.Cr.R. 423, 334 S.W.2d 796; Barnett v. State, 160 Tex.Cr.R. 622, 273 S.W.2d 878. In the case at bar the amended motion for new trial did not have attached to it the affidavit of the supposedly newly discovered witness. There is found elsewhere in the record such an affidavit which the clerk noted was never filed.

When the trial judge inquired in open court if the appellant refused to present the motion in the form required by law because he did not desire to urge the matter, the appellant personally answered 'Right.'

The trial court did not err in refusing to consider the amended motion for new trial. Such refusal was not based simply upon the fact that the appellant had not personally signed the said motion.

Ground of error #1 is overruled.

Next, appellant contends the State suppressed evidence material to his guilt or innocence. Appellant's court appointed counsel on appeal has attached to the appellate brief offense reports of Officers Perry and Neaves of the San Antonio Police Department who investigated the alleged offense but who were not called as witnesses. Counsel acknowledged that he had obtained the same from an examination of the State's file after his appointment on appeal. He did not represent the appellant at the trial. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, is cited in support of his contention, though he points to no request for such evidence as there was in Brady.

First, we observe that this court will not consider documents attached to appellate briefs as part of the record on appeal. Second, if there exists a constitutional duty of the prosecution to disclose evidence favorable to the accused where the evidence is material to guilt or punishment in absence of a request, as there was in Brady, there is nothing in the record before us to show that appellant and his court appointed trial counsel did not know of such offense reports during the trial or were not allowed to examine the State's file as the appellate counsel was. If such facts were known to the appellant or his trial counsel, he cannot now seek relief on the basis of the State's failure to disclose the same facts. Means v. State, Tex.Cr.App., 429 S.W.2d 490, 496; see Thomas v. United States, 343 F.2d 49, at p. 544, 9th Cir., 1965; ...

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22 cases
  • Simmons v. State
    • United States
    • Texas Court of Criminal Appeals
    • 23 Enero 1974
    ...one stage trial.' See, also, Chappell v. State, Tex.Cr.App., 489 S.W.2d 923; Graham v. State, Tex.Cr.App., 486 S.W.2d 92; Harris v. State, Tex.Cr.App., 453 S.W.2d 838; Evans v. State, Tex.Cr.App., 444 S.W.2d Under the circumstances of the instant case, the eighth ground of error is overrule......
  • Ex parte Chavez
    • United States
    • Texas Court of Criminal Appeals
    • 20 Junio 2012
    ...when “the defendant himself already knew about the exculpatory facts.” Chavez I, 213 S.W.3d at 325 (citing, e.g., Harris v. State, 453 S.W.2d 838, 839 (Tex.Crim.App.1970) (“If such [exculpatory] facts were known to the appellant or his trial counsel, he cannot now seek relief on the basis o......
  • Ex Parte Chavez
    • United States
    • Texas Court of Criminal Appeals
    • 22 Noviembre 2006
    ...Ex parte Castellano, 863 S.W.2d 476 (Tex.Crim.App.1993); Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989). 24. Harris v. State, 453 S.W.2d 838, 839 (Tex. Crim.App.1970); Carmona v. State, 698 S.W.2d 100, 105 (Tex.Crim.App.1985); Havard v. State, 800 S.W.2d 195, 204-5 (Tex. Crim.App.1989).......
  • Coleman v. State
    • United States
    • Texas Court of Criminal Appeals
    • 22 Diciembre 1982
    ...Furthermore, the appellant has failed to demonstrate that these facts were not already known to him or his counsel. Harris v. State, 453 S.W.2d 838 (Tex.Cr.App.1970). Finally, the appellant did not request a postponement or continuance on the basis of surprise, but rather moved to have the ......
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