Seale v. State, 26106
| Decision Date | 04 February 1953 |
| Docket Number | No. 26106,26106 |
| Citation | 158 Tex.Crim. 440,256 S.W.2d 86 |
| Parties | SEALE v. STATE. |
| Court | Texas Court of Criminal Appeals |
Tom Garrard, W. C. (Calloway) Huffaker, Jr. and Harold Green, Tahoka, for appellant.
Mitchell Williams, County Atty., Tahoka, George P. Blackburn, State's Atty., of Austin, for the State.
The offense is driving a motor vehicle upon a public highway while intoxicated; the jury having assessed the punishment at a fine of $500.
The appeal is predicated upon the sole contention that appellant was neither required nor permitted to plead to the information and that no plea was entered for him or on his behalf, either by the court or by his attorneys.
Among other authorities, appellant cites and relies upon Fann v. State, 138 Tex.Cr.R. 580, 137 S.W.2d 1019; Sims v. State, 49 Tex.Cr.R. 199, 91 S.W. 579; Mays v. State, 51 Tex.Cr.R. 32, 101 S.W. 233; Wengenroth v. State, 107 Tex.Cr.R. 78, 294 S.W. 554; Corley v. State, 150 Tex.Cr.R. 107, 199 S.W.2d 782; and the late case of Fowler v. State, Tex.Cr.App., 230 S.W.2d 810.
It appears that the cases cited construe the applicable statutes, Arts. 505 and 642, C.C.P., and Arts. 11 and 847, Vernon's Ann.C.C.P., to support the proposition that where the record affirmatively shows that no plea was entered by or for the defendant, the judgment will be reversed.
For the purpose of showing affirmatively that no plea was entered in the instant case, appellant refers to what is designated as the 'agreed statement of facts on motion for new trial.'
As we understand this instrument, it purports to set out the agreement of the county attorney and defense counsel that the matters therein would for the purpose of the motion be considered as having been testified to by the respective witnesses therein named, as though the witnesses had in fact appeared and testified thereto. It is signed by appellant's counsel and by the trial judge, but is not signed by the state's attorney.
It is true that the approval of the trial judge alone is sufficient to authorize the consideration of any statement of facts showing the testimony of the witnesses but here, as we understand the record, no witnesses testified, and the statement merely sets forth stipulations of facts.
Clearly the trial court could not stipulate for the state, and we are not authorized to consider the instrument referred to.
On the other hand, we think that the record does not affirmatively show that no plea was entered, but refutes that claim, the court having instructed the jury, in his charge, 'the defendant has entered his plea of not guilty, and by his plea of not guilty, he is presumed to be innocent. * * *'
If the question be pertinent, we have no doubt that jeopardy was complete when the court read his charge to the jury and advised them of appellant's plea of not guilty, following the reading of the information before the jury sworn to try him, even though jeopardy had not sooner attached by a formal plea.
The judgment is affirmed.
On Appellant's Motion for Rehearing
DAVIDSON, Commissioner.
Appellant renews his insistence that the facts which he claims were stipulated upon hearing of the motion for new trial should be considered by us. He presents, in that connection, the affidavit of the county attorney showing that he, through inadvertence, failed to sign the...
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Cantu v. State
...that an identical procedure should be followed in the jury's presence, it is not required by that language. See Seale v. State, 158 Tex.Crim. 440, 256 S.W.2d 86, 88 (1953); Tutor v. State, 599 S.W.2d 818, 819 (Tex.Crim.App.1980). We discern no harm to appellant in the present case by the tr......
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Smith v. State, 41697
...appellant had plead not guilty. No objection was made thereto, and if any error existed it was not preserved for review. Seale v. State, 158 Tex.Cr.R. 440, 256 S.W.2d 86. As his twentieth ground of error appellant complains of the failure of the trial court to make and file findings of fact......
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Ford v. State, No. 07-07-0224-CR (Tex. App. 6/24/2008)
...51 Tex. Crim. 32, 101 S.W. 233, 234 (1907). Moreover, where there is no plea, jeopardy has not attached. See Seale v. State, 158 Tex.Crim. 440, 256 S.W.2d 86, 88 (1953); Mays, 101 S.W. at 234; State v. Harkins, 705 S.W.2d 788, 790 (Tex.App.-Dallas 1986, no pet.). If a person has neither ple......
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Runningwolf v. The State Of Tex.
...to the trial court's entry of a plea is waived if it is not raised in the trial court. Tex.R.App. P. 33.1(a)(1); Seale v. State, 158 Tex.Crim. 440, 256 S.W.2d 86, 88 (1953) (op. on Cantu v. State, 939 S.W.2d 627, 646 (Tex.Crim.App.1997). Appellant failed to object to the trial court's entry......