McIntyre v. State, No. 34153
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Writing for the Court | MORRISON |
| Citation | 360 S.W.2d 875,172 Tex.Crim. 510,83 S.Ct. 130 |
| Parties | Bennie Lee McINTYRE, Appellant, v. The STATE of Texas, Appellee. |
| Docket Number | No. 34153 |
| Decision Date | 31 January 1962 |
Page 875
v.
The STATE of Texas, Appellee.
Certiorari Denied Oct. 15, 1962.
See 83 S.Ct. 130.
John Saleh, Lamesa, Mitchell Williams (Court-Appointed), Tahoka, Robert Penrice, Temple, for appellant.
George H. Hansard, Dist. Atty., Lamesa, and Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is rape; the punishment, death.
Appellant's plea of guilty was amply supported by the positive testimony of the prosecutrix and appellant's confession, the voluntary nature of which is not questioned. It was shown that appellant entered a farm house in the absence of prosecutrix's husband and there, by force and by threats to kill, had carnal knowledge and committed an act of sodomy upon her.
Appellant did not testify in his own behalf but called his mother and his uncle, who established that he had never before been convicted of a felony.
[172 Tex.Crim. 511] We shall discuss the contentions advanced in a highly professional manner by appellant's two court-appointed attorneys, both by brief and in argument.
By bill of exception No. 1, it was shown that during the course of the selection of the jury an emergency arose in the family of a juror who had been accepted and qualified. When such fact became known, the court stated in open court that the State, the defendant and his attorneys would have to agree to excuse the juror or a mistrial would be declared. At this juncture, defense counsel asked for time to consult about the matter; the defendant was present 'during the discussion,' at the conclusion of which defense counsel stated the defendant would agree to dismiss the juror and, because defendant made no statement, the court considered that his attorneys were speaking for him.
Both the State and appellant rely upon the relatively recent opinion of this Court in Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643. While it is true that the court in the case at bar was not as careful as the trial judge in Houston, yet it appears that he did what he thought at the time was necessary to secure the assent of the accused. He made the statement in accused's presence that unless the accused himself agreed a mistrial would be declared. A conference was then called for, and time was allowed for such conference, at the conclusion of which counsel for appellant state that his client agreed, and appellant remained silent. By such silence, he lead the court to believe that his attorney was speaking for him. The case at bar differs from any which has been called to our attention because during the voir dire examination of this particular juror, who was later excused, appellant challenged such juror for cause. While it is true that the court overruled...
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...206, 209, 71 S.Ct. 262, 263-64, 95 L.Ed. 215 (1951); see State v. Nash, 149 Conn. 655, 657-58, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S.Ct. 130, 9 L.Ed.2d 104 The next question we must decide is whether the restoration of appellate rights can arise by stipulation of the parties, witho......
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