Barbee v. State

432 S.W.2d 78, 1968 Tex. Crim. App. LEXIS 1052

• Court: Court of Criminal Appeals of Texas
• Decided: May 8, 1968
• Docket: 41225
• Status: Published

Opinions

OPINION

DICE, Judge.

The conviction is under Art. 430, Vernon’s Ann.P.C., for the offense of barra-try; the punishment, fifteen days in jail and a fine of $300.

'The state moves to dismiss the appeal on the ground that notice of appeal was not given after pronouncement of sentence, as required by Art. 44.08(c) of the Code of Criminal Procedure.

The record reflects that notice of .appeal was given on the same day that sentence was pronounced. In the absence of an affirmative showing to the contrary, as in Hollingsworth v. State, Tex.Cr.App., 419 S.W.2d 854, relied upon by the state, it will be presumed that notice of appeal was given after sentence. Accordingly, the motion to dismiss is overruled.

It is further suggested that the appellate brief filed by appellant should not be considered because it was not timely filed pursuant to Art. 40.09-9 and this court’s review should be limited to unassigned error under Art. 40.09-13, C.C.P.

The record reflects that the court entered an order extending the time for filing appellant’s brief “to and including February 4, 1968.” The date, February 4, was a Sunday and the brief was filed on February 5. The fact that the last day of the extension period fell on Sunday did not authorize a filing of the brief on the succeeding Monday, as it would under Rule 4, Texas Rules of Civil Procedure, in a civil case. Bichon v. State, 155 Tex.Cr.R. 98, 230 S.W.2d 812; Seales v. State, 166 Tex.Cr.R. 165, 311 S.W.2d 854.

We will consider as unassigned error under Sec. 13 of Art. 40.09, supra, the following, which should be reviewed in the interest of justice:

In four grounds of error appellant complains of the court’s action in refusing to grant a mistrial or a continuance in order that he might secure an attorney to represent him, when, during the trial, he insisted that due to physical and emotional strain he was incapable of presenting his own defense in the cause.

The record reflects that the complaint and information were filed against appellant on January 23, 1967. Appellant was originally represented in the cause by counsel who filed certain motions on his behalf. The case was set for trial on May 17, 1967, and on such date appellant dismissed his attorney of record. The case was by the court reset for trial on July 17 for the purpose of allowing appellant to obtain counsel of his own choice. On June 12, 1967, at a pre-trial hearing, the court cautioned appellant to obtain counsel and on June 30 discussed with appellant the fact that he had not secured counsel. At such time appellant advised the court that he was “not anywhere near a pauper” and therefore not qualified for a court-appointed attorney but that he had been unable to hire counsel of his own choice.

On July 18, the case proceeded to trial, with appellant representing himself. On Thursday, July 20, the court, upon receipt of a note from Dr. Wm. C. Holt, recessed the case until the following Monday, July 24. On Monday the court recessed the case until the following day, July 25. On July 25, when court convened, appellant then made his motion for mistrial or for a continuance to enable him to obtain counsel, on the ground that he was not physically able to continue as his own counsel.

At the hearing, Dr. Holt testified that he saw appellant on Thursday, July 20, and concluded he was very tired—probably as a result of emotional and physical strain— and wrote a note to that effect.

Dr. J. Zatorski testified that he admitted appellant to his hospital in Houston on Saturday, July 22, with complaints of indigestion 'and pain the shoulder. X-rays of the chest were normal but that of the neck showed some arthritis. The doctor stated that he was aware of appellant’s history of stomach ulcers but was unable to say that his physical and mental condition would be impaired by continuing as his own counsel in the case. He also expressed the opinion that appellant did not need to be in a hospital and that his ulcer would not necessarily heal up better in a hospital.

At the conclusion of such hearing, the court overruled appellant’s renewed motion for a mistrial, or, in the alternative, for a continuance.

We perceive no error. Appellant was not indigent and entitled to the appointment of counsel, under the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, even had he been charged with a felony. Nor, for the same reason, was he entitled to the appointment of counsel, under Art. 26.04, C.C.P., in a misdemeanor case. McClendon v. State, Tex.Cr.App., 407 S.W.2d 778. Under the facts and circumstances, the court did not err in refusing to grant a mistrial or a continuance.

In his eighth and ninth grounds of error appellant insists that the court erred in refusing to grant his motion for an instructed verdict of not guilty at the conclusion of the state’s evidence and also erred in refusing to grant a new trial because “there was insufficient evidence to support the verdict of the jury.”

While this court does not ordinarily consider the question of sufficiency of the evidence to support a conviction as unassigned error under Sec. 13 of Art. 40.09, supra, we will do so, in view of appellant’s claim that, assuming he did “willfully instigate, excite and encourage” Juanita O’Neal to bring a lawsuit against Dow Chemical Company there was no evidence that such was done for his profit or for the purpose of distressing or harassing Dow Chemical Company.

At the trial, the prosecuting witness Juanita Marie O’Neal testified that about a week after her husband’s death in an explosion at Dow Chemical Company the appellant came to her home, uninvited, and talked to her. In the conversation appellant, while talking to her about her husband’s death, said that:

“ * * * I should contact a lawyer. He was telling me that when you have surgery you have a specialist and this law firm in Houston, they are specialists, and therefore, I should contact them. He told me he was an investigator and I should allow him to investigate this because they were responsible for my husband’s death * *

She testified that in such conversation appellant gave her a business card and wrote on the card a telephone number of the law firm and also another number where he could be reached. She stated that after several hours appellant left and in about thirty minutes returned and

“ * * * he started talking about how I should hire this law firm to file a suit against Dow.”

In the second conversation, appellant told the witness

“ * * * that I should hire him to investigate this explosion * * * that we were entitled to anything that we could get and that Dow should pay for this.”

The following morning the appellant called the witness and asked her to hire him to “investigate this explosion,” and asked her if she had decided “to use this law firm in Houston.”

The evidence is sufficient to support the conviction, under the cases of Quarles v. State, Tex.Cr.App., 398 S.W.2d 935, and Quarles v. State Bar of Texas (Tex. Civ. App., 1958), 316 S.W.2d 797.

We do not agree that, because the complaining witness testified on cross-examination she did not know if appellant was soliciting her to file a claim so that he might profit therefrom there was no evidence that he was encouraging her to bring the claim for his own profit. Nor do we agree that there was no evidence to support the allegations that his acts were with the intent to distress and harass the Dow Chemical Company.

The judgment is affirmed.