Mason v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MORRISON
• Citation: Mason v. State, 375 S.W.2d 916 (Tex. Crim. App. 1964)
• Decision Date: 04 March 1964
• Docket Number: No. 36438,36438
• Parties: Alexander MASON, Appellant, v. The STATE of Texas, Appellee.

Page 916

375 S.W.2d 916

Alexander MASON, Appellant, v. The STATE of Texas, Appellee.

No. 36438.

Court of Criminal Appeals of Texas.

March 4, 1964.

Penrice & Johnson, by Robert L. Penrice, Waco, for appellant.

Thomas B. Bartlett, County Atty., Jack Welch (Special Prosecutor), Marlin, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is aggravated assault on a peace officer; the punishment, two years in jail and a fine of $1,000.00.

Our prior opinion is withdrawn and the following is substituted in lieu thereof. Appellant was in jail on another charge. and asked to use the telephone. Since there was none in the jail, he was accompanied by several deputy sheriffs to their office where he used the telephone. After doing so, appellant lay down on the floor and refused to walk back to the jail. He was bodily carried to the jail some distance away, and thence up to the third floor. Nothing unusual occurred other than the above, until the entourage reached the top floor, at which time the officers sat appellant down in order to move certain objects; appellant then arose, grabbed the bar outside the cell and refused to enter. Erskine, the Deputy Sheriff-Jailer, who had brought appellant his breakfast that morning, testified that as he and Deputy Sheriff Curtis were pulling him by his arms into the cell, appellant broke loose from Curtis, who was holding his right arm, and 'he swung at me, hit me, knocked me on the bunk. * * * He knocked my glasses off.' The other officers testified to substantially the same facts and verified that Erskine's glasses were bent and his nose was bleeding. It was shown that prior to the incident in question, appellant had been arrested on a Capias charging him with the offense of contributing to the delinquency of a minor.

Appellant, testifying in his own behalf, stated that he was a minister, that he had been harassed by the officers, and that he was arrested at a cafe 'that caters to white customers', but that later other charges were filed against him. He admitted that he lay down on the floor in the sheriff's office, which made it necessary for the officers to carry him from the courthouse to the jail and upstairs. As to the alleged assault upon Erskine, he testified, 'At no time did I hit, and at no time did I even swing.' He did state that when they reached the third floor, he kicked loose and Deputy Sheriff Sharp kicked him in the side.

He called several witnesses who attested to his reputation.

Dr. T. G. Glass, the County Health Officer, testified that on the day in question he examined appellant, who complained of being beaten, but from his examination, he was unable to find any indication of personal injury. All the officers who were present denied that they inflicted any violence upon appellant.

The jury resolved the conflict in the evidence against appellant, and we find it sufficient to support the conviction. We shall discuss the contention advanced in brief and argument. No formal bills of exception appear in the record. A motion for change of venue was made, but the court overruled the same and refused to hear evidence in support thereof. This being a misdemeanor case, a change of venue is not authorized by the holdings of this Court except in those rare cases which come within the terms of Article 563, Vernon's Ann.C.C.P., which both the State and appellant overlook in their briefs. Appellant urges that we overrule the long line of decisions holding that venue may not be changed in a misdemeanor case except in those counties wherein Article 563 controls. Appellant's contention that Article 562 as...