Sustaita v. State
| Decision Date | 01 December 1965 |
| Docket Number | No. 38790,38790 |
| Citation | 396 S.W.2d 381 |
| Parties | Juan SUSTAITA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Sam Saleh (Court appointed on appeal only), Lamesa, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder; the punishment, 50 years.
Three State witnesses testified that they were engaged in a fight at a drive-in theater on the night in question and that deceased was a participant. The three were armed with knives, and deceased was armed with a stick similar to the big end of a billiard cue. Appellant was not a participant, nor had he been seen by any of the witnesses prior to the time he started firing at the group. One shot entered the center of the back of deceased's neck which caused his death. Appellant then fired twice at another of the participants, but did not hit him.
The Sheriff apprehended appellant some time later, and appellant directed him to a point approximately four miles from town where he recovered a pistol of the same caliber as the bullet which was recovered from deceased's neck.
On the afternoon of the day following the homicide the Sheriff carried appellant to the Department of Public Safety Building in Midland where a written confession was signed by appellant.
Appellant did not testify, but called his father who testified that appellant had never before been convicted of a felony and answered the question, 'Has he had any trouble with his head that you know?', by answering, 'I guess he did because sometimes he is not in his mind, it runs off.'
This case presents an unusual sequence of events on appeal and we will discuss the contentions raised by diligent court appointed counsel in his brief and in argument in the order raised. The statement of facts reflects that the trial was had in the District Court of Dawson County in November of 1960. No notice of appeal was made at the time of sentencing. Pursuant to the judgment of the United States District Court for the Eastern Division of Texas in Cause #4407, styled Juan Sustaita v. Dr. George J. Beto, Director of Department of Corrections, appellant again appeared before the District Court of Dawson County where he was sentenced and notice of appeal was given, and this case is properly before us.
Bill of Exception #1 complains of the failure of the Court to appoint counsel at his 1960 trial. This bill is qualified by the statement that 'the Court was informed that defendant had employed an attorney and his attorney appeared and represented him at the trial.' The record is barren of any showing of indigency and the statement of facts reflects that appellant was represented by counsel of wide experience in the criminal law who is well known to this Court. In the absence of a showing of indigency or request for counsel at the time of his trial in 1960, we are aware of no question raised by the bill.
Bill of Exception #2 complains of the absence of his attorney at the time he was sentenced in 1960. Since the judgment of the United States District Court is not before us, we can only assume that this was the basis upon which such order was issued. The bill is qualified to show that appellant's...
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...(i.e., the possession of heroin) in absence of an overt act does not normally constitute the commission of an offense. In Sustaita v. State, Tex.Cr.App., 396 S.W.2d 381, it was held that admission into evidence of portions of the defendant's confession relating to reasons and means whereby ......
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...in the motion. A requisite is that an affidavit of the witness is necessary to establish abuse of judicial discretion. Sustaita v. State, Tex.Cr.App., 396 S.W.2d 381; Young v. State, Tex.Cr.App., 384 S.W.2d 710; Bradshaw v. State, 167 Tex.Cr.R. 469, 320 S.W.2d If absent testimony be conside......
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