Martinez v. State, 43990
| Decision Date | 29 June 1971 |
| Docket Number | No. 43990,43990 |
| Citation | 471 S.W.2d 399 |
| Parties | Johnny R. MARTINEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Herrington, Levbarg, Weeks & Jones, Austin, for appellant.
Robert O. Smith, Dist. Atty., Phillip A. Nelson, Robert A. Huttash and Lawrence Wells, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is possession of heroin; the punishment, enhanced by two prior convictions for non-capital felonies, life.
Appellant's first ground of error is that the Court erred in failing to grant him a new trial when juror Thomason testified that during their deliberations they asked the bailiff, 'Does a vote have to be unanimous,' and he replied in the affirmative. 1 At this juncture, ten jurors had voted for a guilty verdict and two had voted 'not guilty.' We had this identical question in Boone v. State, 156 Tex.Cr.R. 327, 242 S.W.2d 380, where we said,
'The allegation of the motion supported by the affidavit of the juror Cowell was to the effect that in response to a question of one of the jurors, the officer in charge of the jury stated in the jury room that all of the jurors must agree and the verdict must be unanimous rather than upon the decision of a majority of the jurors * * *
'Further, the allegations, if true, would not warrant the granting of a new trial for jury misconduct.'
Appellant's second ground of error is the identical question decided adversely to his contention in Arechiga v. State, Tex.Cr.App., 462 S.W.2d 1, concerning cross-examination as to a collateral matter.
His third ground of error relates to the failure to corroborate the alleged accomplice. This contention has been decided adversely to appellant in Herrera v. State, Tex.Cr.App., 462 S.W.2d 597 and Corpus v. State, Tex.Cr.App., 463 S.W.2d 4, wherein we were discussing the same witness, Mary Hernandez.
Appellant's fourth ground of error is that the Court erred in not granting his motion to limit the penalty to fifteen years. He bases this contention upon the fact that this appellant was indicted as a habitual criminal and brought to trial before Judge Blackwell, where the State waived or abandoned the allegations as to the prior convictions and Judge Blackwell sentenced the appellant to fifteen years for the primary offense. Subsequently, Judge Blackwell granted appellant's motion for new trial. The prior indictment was dismissed and the appellant was again indicted as a habitual criminal, with the same two prior convictions alleged for enhancement, and brought to trial before Judge Thurman where...
To continue reading
Request your trial
-
Wyatt v. State
...the instant offense, North Carolina v. Pearce, supra, does not apply. 3 Alvarez v. State, Tex.Cr.App., 536 S.W.2d 357; Martinez v. State, Tex.Cr.App., 471 S.W.2d 399. Appellant's fourth ground of error is overruled. In his ground of error five, appellant contends that the trial court erred ......
-
Bouie v. State
...was not applicable. There was no focus upon any vindictiveness on the part of the prosecutor. To the same effect is Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App.1971). These cases were, of course, decided prior to Perry, but Martinez's later claim that there was prosecutorial vindictivenes......
-
Martinez v. Estelle
...State of Texas, 236 F.Supp. 857 (1965) and Wheatley v. State, 117 Tex.Cr.R. 876, 34 S.W.2d 876.Record, vol. 2 at 43.3 Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App.1971). The court stated that "(h)e neither alleges nor contends that the confession was involuntarily given nor does he allege ......
-
Carr v. State
...Easley v. State, 478 S.W.2d 539 (Tex.Cr.App. 1972), and Carter v. State, 480 S.W.2d 735 (Tex.Cr.App. 1972). See also Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App. 1971). Cf. Gomez v. State, 461 S.W.2d 422 (Tex.Cr.App. 1971), and Corpus v. State, 463 S.W.2d 4 (Tex.Cr.App. 1971). Further, wh......