Steward v. State, No. 40898

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtONION
Citation422 S.W.2d 733
PartiesOvie John STEWARD, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 40898
Decision Date10 January 1968

Page 733

422 S.W.2d 733
Ovie John STEWARD, Appellant,
v.
The STATE of Texas, Appellee.
No. 40898.
Court of Criminal Appeals of Texas.
Jan. 10, 1968.

George C. Thompson, Jr., Fort Worth, (Court appointed), for appellant.

Frank Coffey, Dist. Atty., Grady Hight and Glenn Goodnight, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., life.

On May 3, 1966, the appellant committed the robbery of a drive-in grocery and market in Arlington, Texas. At pistol point he caused the owner and an employee of the store to empty the money from two cash registers into a paper sack. A traffic patrolman, alerted by a passer-by, entered the store during the robbery unobserved by the appellant. As the appellant was leaving the store the officer called to him to stop. The appellant then turned and fired at the officer. The officer returned the fire and struck the appellant with a bullet in his right forearm. The appellant was captured shortly thereafter in a nearby alley.

The indictment charged the capital offense of Robbery by Assault with Firearms in the first count. The very same offense was alleged as Robbery by Assault (a non-capital felony) in the second count, and the third paragraph alleged a prior

Page 735

conviction of robbery for the purpose of enhancement.

Initially, the appellant attacks the indictment. Although no motion to quash was filed prior to trial, appellant contends the trial court erred in failing to sustain his 'motion to strike' the third 'count' 1 of the indictment alleging the prior conviction for enhancement filed (May 12, 1967) long after notice of appeal. Trial commenced on October 24, 1966, and sentence was pronounced and notice of appeal was given on December 19, 1966. Clearly the motion was untimely filed. Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520; Merrel v. State, Tex.Cr.App., 374 S.W.2d 240; Valadez v. State, Tex.Cr.App., 408 S.W.2d 109; Wilson v. State, Tex.Cr.App., 398 S.W.2d 291. In view of his claim of fundamental error we shall, however, discuss the same. Appellant urges that the third paragraph makes no reference to said indictment and the said indictment does not make the piece of paper (third paragraph) a part thereof by reference or otherwise. We reject such contention for it appears from a photostatic reproduction of the indictment in the record on appeal that the third paragraph is securely attached by scotch tape to the rest of the indictment forming an integral part thereof and refers to the appellant by name. There is no showing that the indictment was not returned in this manner by the grand jury. See Jenkins v. State, 64 Tex.Cr.R. 86, 141 S.W. 222 (an indictment pasted together).

He further claims that the indictment is fundamentally defective as it reflects that only the first count thereof is signed by the grand jury foreman. Even if true, the same would not constitute reversible error. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777. 2

In Ex parte King, supra, it was held that the signature of the foreman of the grand jury not being essential to the validity of the indictment the fact that one count thereof was signed and not the others would be immaterial.

It appears that a printed one-page form with appropriate blanks was used to allege the capital offense contained in the first count. At the proper juncture in the printed form the second count and third paragraph, also on printed forms, were scotch taped thereto elongating the first page of the indictment. A second page contains a proper conclusion for the entire indictment, and a bob-tailed third page contains the signature of the grand jury foreman. The third page, prior to the changes in forms above mentioned, was apparently a part of the printed form for alleging the capital offense of robbery by assault with firearms found on the first page of the indictment. It clearly appears that the entire indictment was signed by the grand jury foreman. Further, no objection as to the form was made prior to or during the trial. We perceive no error. See Jenkins v. State, supra; Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362. We do observe,

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however, that in the time it took to 'construct' this indictment from various printed forms with all the necessary copies, a much more acceptable form could have been typed or devised.

In his next ground of error appellant complains that though the State had filed its 15 day written notice to seek the death penalty in connection with the first count of the indictment as provided by Article 1.14, V.A.C.C.P., the prosecutor on the day of the trial announced on appellant's plea of not guilty that he would withdraw the death penalty notice, waive and abandon the first count of the indictment and that he would proceed on the second count and the third paragraph of the indictment. Such action, appellant contends, deprived him of reasonable notice and caught him by surprise as he had prepared to defend against the capital offense. We find no motion for continuance in the record or any evidence to support appellant's contention assigned as a ground of error on appeal. We know of no requirement that the State must give written or reasonable notice of its intention to waive and abandon a count in the indictment alleging a...

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47 practice notes
  • Hathorne v. State, No. 42871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 21, 1970
    ...Square v. State, 167 S.W.2d 192, 145 Tex.Cr.R. 219; Beck v. State, Tex.Cr.App., 420 S.W.2d 725; Steward v. State, Tex.Cr.App., 422 S.W.2d 733; Baker v. State, Tex.Cr.App., 437 S.W.2d 825 (concurring opinion). It is also observed that the more appropriate plea (as to such prior convictions) ......
  • Ex parte Taylor, No. 49443
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 5, 1975
    ...failure to comply will call for reversal on direct appeal. See, i.e., Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 In joining the opinion on original submission it was my hope the same approach could be......
  • Walker v. State, No. 49289
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 25, 1975
    ...preparation period will call for reversal on direct appeal. See, i.e. Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967). Clearly Taylor followed Meadows in a like manner, for the opinion st......
  • Hill v. State, No. 44340
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 21, 1971
    ...and a failure to comply will call for reversal on direct appeal. Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967); Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Ex parte Gudel, 368 S......
  • Request a trial to view additional results
47 cases
  • Hathorne v. State, No. 42871
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 21, 1970
    ...Square v. State, 167 S.W.2d 192, 145 Tex.Cr.R. 219; Beck v. State, Tex.Cr.App., 420 S.W.2d 725; Steward v. State, Tex.Cr.App., 422 S.W.2d 733; Baker v. State, Tex.Cr.App., 437 S.W.2d 825 (concurring opinion). It is also observed that the more appropriate plea (as to such prior convictions) ......
  • Ex parte Taylor, No. 49443
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 5, 1975
    ...failure to comply will call for reversal on direct appeal. See, i.e., Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 In joining the opinion on original submission it was my hope the same approach could be......
  • Walker v. State, No. 49289
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 25, 1975
    ...preparation period will call for reversal on direct appeal. See, i.e. Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967). Clearly Taylor followed Meadows in a like manner, for the opinion st......
  • Hill v. State, No. 44340
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 21, 1971
    ...and a failure to comply will call for reversal on direct appeal. Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967); Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Ex parte Gudel, 368 S......
  • Request a trial to view additional results

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