Pedroza v. State

• Decision Date: 21 May 1924
• Docket Number: (No. 8371.)
• Citation: 263 S.W. 283
• Parties: PEDROZA v. STATE.
• Court: Texas Court of Criminal Appeals

Page 283

263 S.W. 283

PEDROZA v. STATE.

(No. 8371.)

Court of Criminal Appeals of Texas.

May 21, 1924.

Rehearing Denied June 27, 1924.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Lino Pedroza was convicted of rape, and he appeals. Affirmed.

Alfred Du Perier, of Port Arthur, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is rape; punishment fixed at confinement in the penitentiary for a period of 15 years.

The indictment is regular. No statement of facts accompanies the transcript, and no bills of exception are contained therein.

The term of court at which the trial took place expired on the 15th day of September, 1923. During that term there was filed the affidavit of appellant in which he stated that he was unable to pay or give security for the costs of the appeal of his case. So far as the record reveals, this affidavit was not called to the attention of the trial court, nor was there any order made. It is required in article 845a, C. C. P., that, when a case is appealed, and the defendant is unable to pay for the transcript of the evidence or to give security for the costs, it shall, nevertheless be the duty of the stenographer to make the transcript of his notes showing the evidence as described in article 844b, C. C. P., and deliver it to the accused without costs to him. It is also required by the statute mentioned (article 845a) that as a predicate for imposing this duty, an affidavit shall be made by the accused, stating his inability to pay or give security for the costs, and that "upon the making and filing of such affidavit, the court shall order the stenographer to make such transcript in duplicate, and deliver them as herein provided in civil cases, but the stenographer shall receive no pay for same." In the present matter, if the filing of the affidavit was known to the trial court the order prescribed by the statute should have been made. Inasmuch as the record fails to show that the order was made, this court must assume that the affidavit was not called to the attention of the trial judge.

It is not improper to say that it is painful to find the record in the condition of the present one. The law contemplates that one convicted of a felony shall have the right of appeal, and prescribes the procedure, making available a transcription of the evidence to the indigent as well as the opulent individual convicted of crime. Ex parte Fread, 83 Tex. Cr. R. 865, 204 S. W. 113; Fennell v. State, 90 Tex. Cr. R. 408, 235 S. W. 885; Ellis v. State, 85 Tex. Cr. R. 529, 213 S. W. 264; Jackson v. State, 92 Tex. Cr. R. 242, 242 S. W. 732; Sisson v. State, 92 Tex. Cr. App. 601, 244 S. W. 1012.

The appellant seems to have made an attempt by filing an affidavit to secure the privilege of bringing the facts before this court for review. It is a subject of regret that there has been a failure to accord this right which the lawmakers intended he should have. This court, however, has no choice but to assume that the trial court did not know that the affidavit mentioned was filed, and, finding no other matter presented for review, must order an affirmance of the judgment.

On Motion for Rehearing.

The motion for new trial was overruled on the 15th of September, 1923, and an order made allowing 90 days within which to file a statement of facts and bills of exception. The record filed in this court on the 10th of December, 1923, contained no bills of exception or statement of facts. On the 31st day of July, 1923, there appears to have been filed with the clerk of the district court the affidavit of the appellant affirming his inability to pay for the transcript of evidence or to give security therefor. The record fails to show that this affidavit was called to the attention of the trial judge as required by the statute. Article 845a, C. C. P. The case was affirmed on the 21st of May, and thereafter, on the 5th of June, an affidavit was filed from which, in substance, it appears that, upon learning that the affidavit of inability to pay for the transcript had been filed, the court stenographer prepared a statement of facts and delivered it to H. B. Tucker, who was counsel for the appellant. Another affidavit made by the appellant asserts that not until three or four days before the time specified in the order of the court for filing the...