Proctor v. State

• Decision Date: 24 February 1971
• Docket Number: No. 43461,43461
• Citation: 465 S.W.2d 759
• Parties: James B. PROCTOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 759

465 S.W.2d 759

James B. PROCTOR, Appellant, v. The STATE of Texas, Appellee.

No. 43461.

Court of Criminal Appeals of Texas.

Feb. 24, 1971.

On Rehearing April 20, 1971.

Jones, Jones & Baldwin by Carl Roth, Marshall, for appellant.

Charles A. Allen, Dist. Atty., Marshall, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for assault with intent to murder without malice where following a verdict of guilty the court assessed the punishment at three years.

The record reflects that sentence was pronounced on January 14, 1970. The only notice of appeal in the record reflects such notice was filed on January 26, 1970.

Article 44.08, Vernon's Ann.C.C.P., provides that except in cases where the death penalty has been assessed or probation granted, notice of appeal shall be given or filed within ten days after sentence is pronounced. See Section (c) thereof. Section (e) of such statute provides that 'For good cause shown, the trial court may permit the giving of notice of appeal after the expiration of such ten days.'

It is clear that notice of appeal was not given or filed within the time prescribed by statute, and nothing in the record reflects that the trial court for good cause shown permitted a belated notice of appeal.

Therefore this appeal must be dismissed. Nix v. State, Tex.Cr.App., 433 S.W.2d 710 and authorities there cited.

It is observed that upon a showing of good cause, the trial court in the case at bar may still permit the giving of notice of appeal, and in such event, proceedings may then be had in the trial court pursuant to Article 40.09, V.A.C.C.P. See Herbort v. State, Tex.Cr.App., 422 S.W.2d 456; Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854; Flores v. State, Tex.Cr.App., 419 S.W.2d 202.

In the event that the trial court does permit the giving of notice of appeal under Section (e) of Article 44.08, supra, then this indigent appellant must be furnished a complete record on appeal. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

Even if timely notice of appeal had been given in the case at bar, this court would have been unable to have passed on the sole ground of error presented in light of the partial record brought forward. Under any circumstances, the appeal would have to have been abated until a complete record was furnished.

For the reasons stated, the appeal is dismissed.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission this appeal was dismissed because notice of appeal was not given within ten days after sentence was pronounced. See Article 44.08(c), V.A.C.C.P. On rehearing our attention has been called to the fact that the Code Construction Act (Article 5429b--2, Vernon's Ann.Civ.St.) provides that in computing a period of days, the first day is excluded and the last day is included, but when such last day falls upon a Saturday, Sunday or legal holiday, the period is extended to include the next day which is not a Saturday, Sunday or legal holiday. In Barbee v. State, Tex.Cr.App., 432 S.W.2d 78, the Code Construction Act was cited with approval overruling earlier criminal cases to the contrary.

Therefore, we conclude that the last day in which notice of appeal should have been given in the case at bar fell on Saturday, January 24, 1970, but in light of the Barbee decision and the Code Construction Act, the notice of appeal given on Monday, January 26, 1970, was timely.

Further, a supplemental transcript has been filed and the case shall be considered on its merits.

In his sole ground of error appellant contends the trial court erred in permitting his in-court identification by the witness Coleman since there was no clear and convincing proof that such identification was not tainted by pre-trial identification procedures and confrontations.

The appellant filed a motion to suppress such testimony claiming the same was not based upon independent recollection of the witness but in part upon hearsay, suspicion and speculation and that the pre-trial identification was unnecessarily suggestive and conducive to mistaken identification resulting in a denial of due process.

The record at the hearing on the motion to suppress reflects that on September 30, 1968, Constable Coleman responded to a burglar alarm at approximately 3 a.m. and proceeded to the Lindsey General Store in Jonesville. There he observed two men inside the store but was unable to identify them. Calling out the names of the store owners and receiving no response, Coleman proceeded to the rear of the building. One of the burglars who left by the rear door rounded the corner and came face to face with Coleman who fired a blast from his shotgun as the burglar jumped back in haste. Coleman then fired a second shot into the rear door. While attempting to reload, Coleman was struck by a volley of shots. ¹

While in the hospital Coleman approved a composite picture drawn by another officer from his description of the man at whom he fired his shotgun. The police bulletin issued with the drawing described the subject as an 'unknown' white male, 19 to 25 years old, 5 6 to 5 8 tall weighing 150 pounds with dark hair combed back.

Although Coleman had known the appellant since the early 1950's and would have immediately recognized him at the grocery store or post office, he never told the officers that the appellant was the man he had seen or even mentioned his name. He described his view of the burglar rounding the corner of the building during early morning hours as a 'brief but good look.' ²

He was then asked:

'Q. And you also said that the look you got at him wasn't good enough to cause you to remember him or know who it was? You said not that quick?

'A. It didn't register on my mind that that was J. B. Proctor. Just no more than I got to see him.'

Coleman related that it was 'at a later date' that he concluded the person he had confronted at the corner of the building was J. B. Proctor and that he would not have said on the 'day of September 30th to go get J. B. Proctor.'

Approximately three weeks after the incident Coleman learned from a Texas Ranger of a teletype from Little Rock, Arkansas requesting information about a shooting incident similar to the one in which Coleman had been injured.

The exact order of events thereafter is not clear from the testimony of the witnesses. It appears the Harrison County Sheriff's office received information from a police captain in Little Rock that an unidentified informer had reported J. B. Proctor, white male 'about 37,' 5 10 tall and weighing 135 pounds ³ was involved in a shooting with an officer at the scene of a burglary in southern Arkansas. When the officer said there had been no such incident in Arkansas the informer reported the incident could have occurred in Louisiana or Texas.

Coleman then went to the Sheriff's office and asked them to obtain a picture of Proctor along with pictures of his known associates. ⁴

Because he believed the Sheriff's office was not as enthusiastic as it could have been about the case, Coleman obtained a mug shot of the appellant from Arkansas through the efforts of a federal treasury agent. He kept this picture of the man the informant had indicated was responsible for shooting him in his possession until the date of the trial. Later he saw pictures of the appellant and one Bobby Milam and his brother which the Sheriff's office had received from Arkansas, as well as the Sheriff's entire file on the case.

Thereafter Coleman made a trip to Little Rock at his own expense in an attempt to get more information concerning his assailant and talked to the police captain involved who refused to identify the informer but who 'nodded some affirmative type agreement' as Coleman described his assailant.

Somewhere in this process a warrant of arrest was issued for the appellant and a co-defendant Bobby Milam. The 'wanted' notice then issued to be published in the next Department of Public Safety bulletin changed the description of Proctor from that given by Coleman to a description corresponding to that given by an unknown Arkansas informer and reflected Proctor's age at 41 years rather than the 19 to 25 years age group indicated by Coleman. When Milan was apprehended in Arkansas the Sheriff's office returned him to Harrison County without notifying Coleman, whom the Chief Deputy felt was 'too emotionally involved.' Upon learning of Milam's presence in jail Coleman began interrogating him. Milam at first denied any knowledge of the crime. Sometime thereafter 'late one night' he made a confession while Coleman was present implicating the appellant in the alleged offense.

Coleman also obtained a letter written by one 'Mary' to Milam's younger brother relating how 'Bob' and 'J. B.' had to shoot their way out of a place down in Texas the previous Saturday night.

The appellant Proctor was apprehended in the State of Indiana and returned to Harrison County in December 1969, some 14 or 15 months after the alleged offense and approximately a year after he had been indicted. No lineup was held, but Coleman went to the jail on several occasions 'just to see what he was doing' and viewed him in a one-to-one confrontation in the maximum security cell in the absence of counsel who had been appointed.

On the day appellant was arraigned, Coleman rode down in the elevator with him and was present in the courtroom when he was served with a copy of the indictment.

The record reflects the following from Coleman's testimony:

'Q. I think you described it to me that you came to the conclusion, or became convinced, as to the identity of Proctor as being the man out there that night when a chain of pieces or circumstances that fell into place, that you were able finally to conclude in your mind that this was Proctor? ⁵

'A. Yes, sir.

'Q. Of course, all of this that you've described, you jostled your memory to where...