Phillips v. State, 41317
| Citation | 429 S.W.2d 897 |
| Decision Date | 12 June 1968 |
| Docket Number | No. 41317,41317 |
| Parties | Bruce PHILLIPS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Fred J. Finch, Jr., Dallas, Tom Moore, Jr., Waco, for appellant.
Martin D. Eichelberger, Dist. Atty., George Allen, Asst. Dist. Atty., Waco, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is rape; the punishment assessed by the jury, 99 years in the Texas Department of Corrections.
A recitation of the facts is unnecessary to the proper disposition of this appeal. The State's evidence shows the rape of the white prosecutrix, who was several months pregnant, at gunpoint by the Negro appellant. Appellant, testifying in his own behalf, admitted having sexual intercourse with the prosecutrix but contended that it was with her consent and he paid her $2.00.
We are squarely confronted at the outset with the question of whether appellant's six grounds of error were properly assigned in the trial court.
Sentence was pronounced on January 3, 1968, and notice of appeal was given on the same day.
On April 10, 1968, the District Clerk certified the completion of the record and on that same date the State and appellant's retained counsel in a joint written instrument waived the statutory 15 day notice of the completion of the record and The time for filing briefs. The trial court approved the record on April 11, 1968.
On April 15, 1968, the record in this cause was received and filed in this Court; submission date was set for May 29, 1968.
On May 28, 1968, appellant filed a motion with the trial court requesting permission for the late filing of his appellate brief. In his order granting the motion, the trial judge stated he had considered the same and if the brief had been timely filed and no waiver entered, he would have 'overruled Defendant's Motion for New Trial.' On May 29, 1968, when appellant's counsel appeared for oral argument before this Court his appellate brief was filed for the first time. On the same date the State's 75 page brief, never filed in the trial court and obviously prepared without benefit of appellant's brief, was filed with this Court.
The procedure set forth in Article 40.09, Vernon's Ann.C.C.P., allows the trial court opportunity to examine the completed record, hear oral arguments, study briefs and grant a new trial to the same extent that this Court would be authorized to do. This was the real innovation in our appellate procedure contained in the 1965 Code of Criminal Procedure. Liberal provisions for the extension of time to file appellate briefs in the trial court were included to assure the effectiveness of this procedure.
In the case at bar, however, the provisions of Article 40.09, Sections 9, 10, 11, 12 (as amended) and 13, V.A.C.C.P., were deliberately by-passed solely, as we were informed on oral argument, to secure an early appeal date.
Article 44.11, V.A.C.C.P., as amended, does not authorize the procedure here utilized since under the provisions of Article 40.09, Section 13, supra, the briefs, if any, must be submitted along with the appellate record when it is transmitted to this Court.
Any other construction with regard to filing appellate briefs in the trial court would destroy the very purpose of Article 40.09, supra, and permit an appellant, with consent of the trial court, to assign additional grounds of error on appeal between original submission and the motion for rehearing or the issuance of the mandate of this Court. There is nothing in such articles to indicate that such was the intent of the Legislature.
We are have dealing with the narrow question of whether the trial court retained jurisdiction, under the circumstances described including the waiver by appellant's employed counsel of the time to file briefs, to permit the late filing of appellate briefs in the trial court after the appellate record was properly filed in this Court. It should be remembered that we are not confronted with an appellate record prematurely filed in this Court, or a situation where the trial judge had acted in accordance with the provisions of Section 15 of Article 40.09, supra.
In Rangel v. State, Tex.Cr.App., 408 S.W.2d 231, where the record was prematurely filed in this Court, we held, in construing...
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Ex parte Giles
...Brill v. State, 408 S.W.2d 232 (Tex.Cr.App.1966); Tucker v. State, 416 S.W.2d 437 (Tex.Cr.App.1967). Cf. Phillips v. State, 429 S.W.2d 897 (Tex.Cr.App.1968); Carrillo v. State, 480 S.W.2d 612 It is clear that the refusal of the trial court to act under the provisions of Section 6.01(c) of t......
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Farris v. State, 1016-84
...the event that terminated power and authority in the trial court to conduct further proceedings under Article 40.09. Phillips v. State, 429 S.W.2d 897, 899 (Tex.Cr.App.1968). Its rulings in that respect are consistent with former article 828, admitting no exceptions to effect of appeal susp......
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Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist.
...authority to grant an out-of-time appeal 3 or other relief, such as appointment of counsel or compilation of the record on appeal. See Phillips, supra; Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967). As stated in Young, In this way the applicant may, in some instances, be afforded all of ......
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Houston v. State, 42239
...appeal, abandon the case leaving the indigent appellant without counsel before this Court even obtains jurisdiction. See Phillips v. State, Tex.Cr.App., 429 S.W.2d 897. 'It is clear beyond question that indigents must be furnished counsel at Every critical stage of the criminal proceedings,......