Hogan v. Turland, 11531

• Decision Date: 31 July 1968
• Docket Number: No. 11531,11531
• Citation: 430 S.W.2d 720
• Parties: James S. HOGAN, as Next Friend for Ernest Lamar Murphy, Appellant, v. A. M. TURLAND, J. P. Precinct Number 4, Bell County, Texas, Appellee. . Austin
• Court: Texas Court of Appeals

Page 720

430 S.W.2d 720

James S. HOGAN, as Next Friend for Ernest Lamar Murphy, Appellant, v. A. M. TURLAND, J. P. Precinct Number 4, Bell County, Texas, Appellee.

No. 11531.

Court of Civil Appeals of Texas.

Austin.

July 31, 1968.

Mitchell, Gilbert & McLean, Arthur Mitchell, Austin, for appellant.

Neil E. Clinkenbeard, Killeen, for appellee.

O'QUINN, Justice.

In our first consideration of this appeal we concluded that this Court did not have jurisdiction because the mandamus proceeding pertained to a criminal matter and the jurisdiction of courts of civil appeals is limited to civil actions. The appeal was ordered dismissed. 419 S.W.2d 383.

The Supreme Court in considering the case resolved a conflict heretofore existing among courts of civil appeals on this question and held that a mandamus proceeding is a civil rather than criminal action. 428 S.W.2d 316 (Tex.1968).

In compliance with the ruling of the Supreme Court, we have reinstated the appeal and proceed to consider the cause on its merits.

The basic facts of the case were stated in our original opinion and were repeated in the opinion of the Supreme Court.

We consider it appropriate, however, to set out here such facts as will reveal the nature of the case. Ernest Lamar Murphy, a minor, aged eighteen, was arrested by two Killeen policemen in the Yellow Cab Cafe about 5:30 o'clock on the morning of August 8, 1966, while the boy was playing a pin ball or shuffle board machine. No complaint had been filed and no warrant for the boy's arrest had been issued. After being held in jail about two hours, the accused was taken before A. M. Turland, justice of the peace of precinct 4 in Bell County, and fined $15 on a complaint, prepared at the trial, charging disturbance of the peace.

Accused was re-committed to jail where he remained all day until a friend paid the fine by leaving the money with a police officer. When the boy's mother, Florence Hogan, and the boy's step-father, next friend in this appeal, learned of the matter, the mother sought first to obtain a new trial and then to appeal the case. Notice of appeal and an executed appeal bond were refused by the justice of the peace on August 10, the second day following the proceeding in justice court. As next friend, James S. Hogan, the accused's step-father, applied to the county court for mandamus which was denied after hearing. Hogan then prosecuted his appeal to this Court.

We hold that the county court erred in refusing the application for writ of mandamus to compel the justice of the peace to receive the appeal documents and to require that he forward to the county court the record necessary to effect an appeal.

It is settled in this State that if the accused has fully satisfied the judgment by paying the fine and costs, the case is terminated, and a review of the conviction is precluded. Mayes v. State, 152 Tex.Cr.R. 430, 214 S.W.2d 791; Woodard v. State, 163 Tex.Cr.R. 634, 295 S.W.2d 659; Ex parte Dancer, 171 Tex.Cr.R. 381, 350 S.W.2d 544; Gates v. State, 332 S.W.2d 333 (Tex.Cr.App.1960); Winkler v. State, 252 S.W.2d 944 (Tex.Cr.App.1952).

In Winkler v. State the court held, 'The fine assessed and all costs adjudged against appellant having been paid, the question raised on this appeal has become moot.' 252 S.W.2d 944, col. 2.

An exception to the rule was recognized by the Court of Criminals Appeals in Mayes v. State, supra. In that case the general rule was enforced. But the Court observed that if the fine had been paid under duress, relief should not be denied merely because the accused pleaded guilty. 'If he did so under duress,' the Court stated, 'then that issue would have to be presented to the trial court under proper procedure and brought to this Court on appeal from such order as the trial court made.' 214 S.W.2d 791, 792, col. 1.

In Berume v. Hughes, 275 S.W. 268 (Tex.Civ.App., Fort Worth, no writ) the justice of the peace, after a plea of guilty, applied cash deposited with him in lieu of an appearance bond to payment of the fine and costs. The appellate court directed that an appeal be allowed unless it be found that the accused had paid the fine and costs or that payment had been by accused's authority. 275 S.W. 268, 271, col. 1.

The circumstances under which the 18-year-old accused was arrested, imprisoned, tried, fined, re-committed to jail, and later released through intervention of a friend, followed immediately by efforts of his mother to effect an appeal, are significant in determining whether duress attended either the plea or the payment of the fine, or both.

It seems clearly established that at the outset the arrest was illegal. The accused was arrested by two policemen in a reputable restaurant in Killeen early on the morning of August 8, 1966, while amusing himself at a pin ball or shuffle board machine. It is undisputed that accused at the time of his arrest was not disturbing the peace, the offense for which he was later fined. There is testimony that accused was waiting to take a bus to Belton to see about a job. When arrested and taken to jail, the accused had no complaint against him and no warrant had been issued for his arrest.

About 7:30 or 8 o'clock that morning the accused was taken out of jail and before Justice of the Peace Turland. No complaint had been filed at that time. A complaint form was filled out and signed charging that the accused '* * * did then and there unlawfully and willfully *Disturbing the peace against the peace and dignity of the State.' (Emphasis on portion filled in).

During the brief proceedings of making a complaint and trying the accused the judge took time out to look after an inquest matter over the telephone. The time required to file on the accused and impose a fine was approximately fifteen or twenty minutes.

The police officer who signed the complaint testified at the hearing in county court that accused '* * * pled guilty before Judge Turland to that charge and was asked a couple of times if he wanted to call his mother or an attorney.' The accused testified at the hearing that the suggestion he call his mother came only after the trial was over. The record is not clear whether the justice of the peace explained the nature of the charge to the accused or told him of his right to counsel prior to taking the plea. The record does show that the justice told the boy he could be fined up to $200. The accused declined to call his mother and told the judge he wanted to get it over with.

It is clear from the record that the justice of the peace was acquainted with the accused, his mother, and his stepfather. The accused's mother and stepfather operated a jewelry store in Killeen and it was known to the judge at the time of trial that the boy's step-father was confined in a hospital following a recent heart attack. The accused told the judge he did not want to call his mother under the circumstances. 'You know how she is,' the boy said .

When the accused was placed in jail early on the morning of August 8, the arresting officers booked him on charges involving car theft, use of an automobile without the owner's consent, and breaking and entering an automobile. These charges were never filed, and at the hearing in county court it was admitted that other persons were involved or guilty. The accused testified he thought the charge against him when arrested would be vagrancy and told his mother when he got out of jail that he had been fined for vagrancy and for disturbing the peace.

Following the hearing before the justice of the peace, the accused was returned to jail, where he remained until 5 or 6 o'clock that afternoon. During the day the boy called his brother who was unable to help him. Late in the afternoon a friend of the accused went to the jail and paid fifteen dollars and the accused was released. The friend testified that he had had a telephone call from the accused's brother telling him that the boy was in jail and did not have money to pay a fine. After the accused was released, the two boys went to see the accused's mother, who then reimbursed the friend.

The money paid on the fine was placed in an envelope by a policeman at the jail where it was picked up next day by the justice of the peace. As soon as the mother learned about the matter from the accused late in the afternoon of August 8, she sought advice of a lawyer. Next morning, around 10 or 11 o'clock, the mother called the justice of the peace and asked him to give the boy another hearing. The justice declined to discuss the case and hung up the telephone. This incident appears to have occurred before the justice made a deposit of the fine. The mother closed her store temporarily and went to see the justice who told her the matter was closed. The following day, on August 10, the mother went to the office of the justice of the peace with written notice of appeal and an executed appeal bond, which had been prepared by a lawyer, and gave them to the justice, who refused to accept the papers.

In this case the issue of whether involuntary payment of a fine amounting under the circumstances to duress constitutes non-waiver of the right of appeal appears to be presented squarely for the first time to an appellate court having jurisdiction to decide the question. The jurisdiction of the Court of Criminal Appeals does not extend to causes tried in the inferior courts in which the fine does not exceed $100. Article 4.03, Vernon's Ann. Code of Criminal Procedure (Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722). The jurisdiction of the Court of Criminal Appeals to issue mandamus extends only to writs that are necessary to enforce jurisdiction of the Court. Ex parte Rubinson, 170 Tex.Cr.R. 314, 340 S.W.2d 815.

In Eaves v. Landis, Justice of the Peace, 96 Tex.Cr.R. 555, 258 S.W. 1056, 'practically all of' a fine was paid from 'a check then being turned over to the justice of the peace which was used by him to pay the fine' for an accused serving time in...