Waldrop v. State, 17572.
| Decision Date | 22 May 1935 |
| Docket Number | No. 17572.,17572. |
| Citation | 83 S.W.2d 974 |
| Parties | WALDROP v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Coleman County; E. J. Miller, Judge.
Ward Waldrop was convicted of burglary, and he appeals.
Affirmed.
T. T. Crosson and Petty & Sessions, all of Ballinger, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Conviction for burglary; punishment, two years in the penitentiary.
This case is appealed apparently upon two propositions: First, that the state's attorney did not make and file in the papers in this case his written consent to and approval of the waiver of the accused of his right of trial by jury; second, that appellant had executed and filed his application for a suspended sentence before his plea of guilty was made in person, as required by statute, in which application appeared the statement "Wherefore, he prays that the issues of the suspension of his sentence be submitted to the jury herein; that evidence of his said reputation be admitted in evidence."
We have examined the record with special interest, since the matters pertaining to a plea of guilty before the court are comparatively new, the law relative thereto being found in chapter 43, Acts Regular Session, 42d Legislature, at page 65 (Vernon's Ann. C. C. P. arts. 10a-12, 776a, 658).
For some reason, not set out, the Legislature directed that the consent and approval of the duly elected and acting attorney for the state to such waiver must be in writing, duly signed by said attorney and filed in the papers of said cause before the defendant enters his plea of guilty. In the judgment of the trial court in the case before us, duly recorded in the criminal minutes of the district court, we find the following recital: "Whereas such consent and approval, of the duly elected and acting attorney representing the State, in writing duly signed by said attorney, was filed in the papers in said cause before the defendant entered the plea of guilty, and it appears that all prerequisites required by law for the waiving of this right have been performed," etc.
Appellant has but one bill of exceptions, which appears to be more in the nature of a motion for new trial, complaining that appellant had asked for a suspended sentence, and that on his trial he offered testimony that he had never before been convicted of a felony, and also of his previous good reputation as a law-abiding citizen, neither proposition being combated by testimony, but the court had refused to grant him a suspended sentence. This we think the court had the right to do in the exercise of his own judgment in the matter; nor do we agree with appellant's proposition as contained only in his brief, that because in his application for suspended sentence he asked that the matter be submitted to the jury, he could not thereafter enter his plea of guilty before the court and submit the issue of his punishment, which included the suspension of sentence, to the judge.
This court cannot consider the unattached affidavit made by one of appellant's attorneys, which for some reason was put into this record. There appears no motion for a new trial wherein issue was joined between the state and appellant as to whether the written approval and consent of the state's attorney to the waiver mentioned was filed. In the absence of any legal controversy over this issue, which would have to be supported by proof to the contrary upon the hearing before the trial judge, we would hold ourselves bound by the recitals of the judgment.
As we understand the record before us, the said state's attorney, whose duty it was to sign and file his consent and approval in writing to the waiver, was never called before the court to affirm or deny his compliance with the law. The judgment recites that this written consent and approval had been filed. There is nothing before us legally combating the recitals of the judgment.
No error appearing, the judgment will be affirmed.
On Motion for Rehearing.
The bill of exception upon which appellant relies to exhibit error contains the following recital: "That the duly elected and acting attorney representing the State in said cause did not before such defendant entered his plea of guilty in said...
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