McKnight v. State, 41211
| Decision Date | 08 May 1968 |
| Docket Number | No. 41211,41211 |
| Citation | 432 S.W.2d 69 |
| Parties | Robert McKNIGHT, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Ferguson & Busby by Donald L. Busby, Cleburne, Henrichson & Bates, by James S. Bates, Edinburg, for appellant.
Robert M. Mahanay, Dist. Atty., Cleburne, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for burglary; the punishment, twelve years.
The indictment was returned against appellant on May 5, 1967, and the case was tried on July 17, 1967.
On the date set, a motion for continuance was filed on behalf of appellant and two other defendants, John McMicken and Travis Frost--separately indicted--by Senator James S. Bates, 'one of the attorneys representing' the defendants, which motion alleged as grounds therefor that due to the critical illness of the senator's father-in-law his presence was required elsewhere by both his wife and his own regard for his father-in-law. The motion was by the court overruled and the case proceeded to trial, with appellant being represented by Senator Bates's co-counsel in the case, James E. Ferguson and Don Busby.
On the date of the trial, a motion was also filed by appellant to disqualify Judge Penn Jackson as judge in the case on the ground that he was the father-in-law of District Attorney Robert M. Mahanay and, by virtue of such relationship, was disqualified under Art. 30.01 of the Code of Criminal Procedure. It was further alleged in the motion that by reason of the relationship between Judge Jackson and District Attorney Mahanay appellant could not receive a fair trial. Such motion to disqualify was by the court overruled and it was stipulated that Judge Jackson was the father-in-law of District Attorney Robert M. Mahanay, the prosecutor in the case.
It is the court's action in overruling the two motions which is the basis of appellant's two grounds of error on appeal.
We first overrule the ground of error which complains of the court's refusal to grant a continuance.
The record reflects that following his arrest in April, 1967, not only Senator Bates but Attorneys James E. Ferguson and Don Busby were employed to represent appellant. Ferguson was an attorney of eighteen years' experience and a former county and district attorney of Johnson County. His associate, Busby, was an attorney of one and a half year's experience, including the trial of criminal cases. Prior to the date of trial, Attorneys Ferguson and Busby filed on behalf of appellant and the other defendants a motion to suppress certain evidence in the cases. Although--as contended by appellant--Senator Bates may have been leading counsel in the cases, it appears that appellant was ably represented by his co-counsel, Ferguson and Busby, in the trial of the case.
Under the decisions of this court, a judgment will not be reversed because of the refusal to postpone a case on account of the absence of leading counsel where the record shows that associate counsel ably represented the defendant. Kerr v. State, 134 Tex.Cr.R. 368, 115 S.W.2d 672; Caraway v. State, 98 Tex.Cr.R. 119, 263 S.W. 1063; Sapp v. State, 87 Tex.Cr.R. 605, 223 S.W. 459.
We do not agree that appellant is shown to have been denied either his constitutional right to counsel or a fair trial. The decision by the Supreme Court of the United States in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, cited by appellant, which recognized the constitutional principles established in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, that during the critical period of the proceedings from the time of arraignment until the beginning of the trial a defendant is as much entitled to the aid of counsel as at the trial, itself, is not here controlling.
We also overrule the ground of error which complains of the court's failure to recuse himself because of his relationship to the district attorney.
Art. 5, Sec. 11, of our State Constitution, Vernon's Ann.St. provides that
'No judge shall sit in any case * * * where either of the parties may be...
To continue reading
Request your trial
-
Rosales v. State
...Kerr v. State, 134 Tex.Cr.R. 368, 115 S.W.2d 672 (1938); Lane v. State, 162 Tex.Cr.R. 305, 284 S.W.2d 723 (1955); McKnight v. State, 432 S.W.2d 69 (Tex.Cr.App.1968); Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976). Failure to grant a motion for continuance where lead counsel has been debi......
-
State ex rel. Millsap v. Lozano
...Nat'l. Bank, 489 S.W.2d 697 (Tex.Civ.App.--Amarillo 1972), rev'd. on other grounds, 507 S.W.2d 722 (Tex.1974); McKnight v. State, 432 S.W.2d 69, 72 (Tex.Cr.App.1968) (footnote # After the adoption of the Texas Code of Judicial Conduct, the El Paso Court of Civil Appeals in Chilicote Land Co......
-
Thrush v. State
...Roberto Rodriguez, we cannot say that the trial judge abused his discretion in denying the motion for continuance. In McKnight v. State, 432 S.W.2d 69 (Tex.Cr.App.1968), we 'Under the decisions of this court, a judgment will not be reversed because of the refusal to postpone a case on accou......
-
Bradley v. State
...115 S.W.2d 672; Lopez v. State, 152 Tex.Cr.R. 562, 216 S.W.2d 183; 12 Tex.Jur.2d, Continuance, Sec. 27, p. 579. See also McKnight v. State, Tex.Cr.App., 432 S.W.2d 69. Ground of error #1 is Next, appellant contends the court erred in refusing to quash 'the venire from which the jury was cho......